Houchin v Lincolnshire Probation Trust [2013] EWHC 794 (QB)

[2013] EWHC 794 (QB)Case No HQ12X02283
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 9 April 2013
Before
THE HONOURABLE MR JUSTICE SUPPERSTONE
Between
ALAN MICHAEL HOUCHINClaimantLINCOLNSHIRE PROBATION TRUSTDefendant
Heather Williams QC and Quincy Whitaker(instructed by Messrs Atter Mackenzie) for ClaimantIain Daniels (instructed by DLA Piper LLP) for DefendantHearing Hearing dates: 26-28 February 2013
Judgment

Introduction

[1]This is an application by Lincolnshire Probation Trust, the Defendant, to strike out the Claimant’s Particulars of Claim pursuant to CPR 3.4(2)(a) on the basis they disclose no reasonable grounds for bringing the action, alternatively for summary judgment pursuant to CPR 24(2)(a) and 24(2)(b) on the basis there is no real prospect of success and there is no other compelling reason for the claim to continue.[2]Mr Houchin, the Claimant, is a serving recalled life sentence prisoner. The Defendant is responsible for the provision of probation services within the Lincolnshire area. These proceedings concern a claim for misfeasance in public office against the Defendant on the basis it is vicariously liable for the actions of its employee Mr Michael Gilbert, who was at the material time seconded to HMP North Sea Camp (a Category D, open conditions prison) as Lifer Manager where the Claimant was a Category D prisoner.[3]Paragraph 4 of the Particulars of Claim state:
“This claim for misfeasance in public office relates to the abrupt and unlawful transfer of the Claimant from open conditions at HMP North Sea Camp to HMP Lincoln on 8 May 2008, effected without due process and in circumstances that breached assurances given to the Parole Board. The Claimant’s case is that the transfer was effected by Michael Gilbert, the then acting lifer manager at HMP North Sea Camp, who created a false and deliberately distorted case in support of his removal from open conditions without regard to the Claimant’s actual risk to the public and for his own improper reasons as set out below.”
Paragraph 57 of the Particulars of Claim state:
“The conduct of Mr Gilbert was motivated by improper purposes namely in order to divert criticism of the mishandling of the Claimant’s case from those responsible at the prison and/or motivated by his view that the Parole Board were about to order the Claimant’s release at the eleventh review or in any event confirm his placing in open conditions, such that he felt that he should take matters into his own hands to pre-empt this.”

Factual background

[4]The Claimant was born on 27 May 1938 and is now 74 years of age. On 22 August 1965 he murdered a 16 year old girl. On 16 November 1965 he was convicted of murder and sentenced to life imprisonment. The murder contained a significant sexual element to it. On 15 April 1976 he was released on life license and in 1977 he met and began to live with a woman who became his second wife. On 7 March 1979 his second wife obtained an ex parte injunction under the Domestic Violence and Matrimonial Proceedings Act 1976 (2/5/73-107) against him. They were subsequently divorced in 1980. On 12 March 1979 the Claimant committed an offence of rape. On 29 March 1979 he was remanded in custody. On 30 March his case was referred to the Parole Board by the Home Secretary to consider whether his licence should be revoked and it was on 3 April 1979. On 27 July 1979 he was convicted of rape and he received a nine year determinate sentence which rose to ten years three months, taking into account the activation of certain suspended sentences for unrelated offences. The Claimant always denied the allegation of rape, contending that the sexual intercourse which occurred was consensual. Between 1979 and 1997 he was unable to undertake any targeted offender behaviour work due to his denial of the 1979 rape.[5]However between 1998 and 2004 the Claimant showed “a willingness to explore, challenge and modify behaviours associated with areas of risk” (see report of Ms Capelin, forensic psychologist at HMP Albany dated 17 December 2004). On 24 April 2006 the Claimant was transferred to HMP North Sea Camp, into what are termed “open” conditions following a recommendation by the Parole Board on 11 March 2005. However on 13 October 2006, shortly after his arrival at North Sea Camp the Claimant’s risk level was increased from medium to high (see para 43 below).[6]On 1 January 2008 Mr Gilbert took up the position of Life Manager at HMP North Sea Camp. On 3 January he had a brief introductory meeting with the Claimant. On 28 February a Sentence Planning Meeting was held which both Mr Gilbert and the Claimant attended. The following day Mr Gilbert started to prepare a LISP4 report, an “Open Conditions Failure Report”. On 17 March 2008 Ms Plank became the Claimant’s Offender Manager. She completed an OASys assessment on 27 March 2008 which continued to assess the Claimant’s risk of harm to the public as “high”. Subsequently she completed a further OASys on 2 April 2008 which raised the Claimant’s risk of harm to the public to “very high”. Mr Gilbert completed the LISP4 report on 1 May 2008. The report refers to a meeting of the Inter-department Risk Management Team (“IRMT”) on 1 May 2008 when it was disclosed that the outside probation service had put the Claimant’s level of risk of harm at very high. That was the second OASys of Ms Plank. Mr Gilbert wrote (1/2/116):
“This clearly indicates an imminence to risk of serious harm should he be released into the community. This renders Mr Houchin’s continued presence in North Sea Camp untenable.”
The report concluded (1/2/118):
“Mr Houchin is a life sentence prisoner who remains in denial. The denial is clearly an issue however the prison system has allowed him an opportunity to gain insight into his offending by in effect working around his denial and allowing him to focus on his previous behaviour. This has not had the desired effect and he has now to accept a return to closed conditions. Clearly the value of any work in relation to the 1964 offence [for murder] is limited so in my submission Mr Houchin should be expected to work on the issues related to the 1979 offence [for rape], perhaps overcoming his internal inhibitions in relation to this and working from a position of denial to an open and frank acceptance of the facts of the case and the impact upon his victim who after all was a teenage stranger to him who went to his house in connection with employment, and not for sex. Unless this work is achieved … Mr Houchin will unfortunately render himself unsuitable to be considered for release.”
[7]On 8 May 2008, without any formal advance notification and without any opportunity being given to the Claimant to make representations, he was transferred to HMP Lincoln (a Category B prison). This transfer was made despite a specific assurance that was given by the Lifer Governor of HMP North Sea Camp, made in the presence of Mr Gilbert, to the Parole Board at the Claimant’s deferred eleventh parole review on 14 April 2008 that the Claimant would remain at HMP North Sea Camp pending an adjournment of the review that was then fixed for 30 July 2008.[8]On 3 June 2008 the Claimant issued judicial review proceedings in respect of his transfer on 8 May 2008. The matter was listed for a “rolled up” hearing before Collins J on 2 July 2008, when it was adjourned generally upon the Secretary of State for Justice agreeing that he would refer two questions to the Parole Board for its advice: i) Whether the Claimant should have been relocated to closed conditions, and ii) Whether he should be recommended for immediate transfer back to open conditions.[9]Following a hearing over four days between 5 November 2008 and 26 March 2009 on the reference by the Secretary of State and for the purposes of the eleventh statutory review, the Parole Board issued its decision on 27 July 2009.[10]The panel identified four issues that it had to determine (para 45):
“(1) Issue 1: was there any evidence of heightened risk whilst Mr Houchin was in open conditions? (2) Issue 2: should Mr Houchin have been relocated from category D open conditions in HMP North Sea Camp and transferred to category B closed conditions in HMP Lincoln on 8 May 2008? (3) Issue 3: what is Mr Houchin’s current risk of harm and how should that risk be addressed? (4) Issue 4: can Mr Houchin now be recommended for a transfer back to open conditions and what risk would he pose in open conditions?”
[11]The panel’s conclusion on Issue 1 is set out at paragraph 86 of the decision:
“The reality is that, on any objective view, no evidence has emerged during Mr Houchin’s time in open conditions, a period of twenty-five months, that his risk has been raised above, or was higher than, the OASys assessment of his risk that he was a medium harm risk to the public, that had been made in 2005 and which had formed the basis of the decision to transfer him to open conditions.”
The panel’s reasons that led it to this conclusion include the following:
“(3) Neither HMP North Sea Camp nor Ms Plank provided a satisfactory explanation or any reasonable basis for deciding to raise Mr Houchin’s risk of harm from medium to high on 13 October 2006 and from high to very high on 2 April 2008. (4) Mr Houchin, both in his conduct at HMP North Sea Camp and on escorted town visits, did nothing that would lead to a reasonable conclusion that his risk levels were raised above the levels that they had been assessed as having been lowered to at the time of his arrival at HMP North Sea Camp. (5) The assessments of heightened risk that were made at various times by Ms Rawlings, MAPPA [Multi-Agency Public Protection Arrangements], Mr Gilbert and Ms Plank were all based on their erroneous views as to his allegedly risky behaviour, attitudes and beliefs on inadequate information and on a very inadequate psychological risk assessment made by Ms Rawlings. These assessments also proceeded on several false bases, particularly that… Mr Houchin had a dangerous strangulation fetish, that he had significant untreated risk associated with his second index offence and that his risk assessment had not previously taken account of his denial of the second index offence, his tendency to minimise his guilt, the possibility that he had undertaken insufficient SOTP offending behaviour work and the extensive domestic violence he was considered to have perpetrated against his ex-second wife.”
[12]On Issue 2 the panel concluded that the Claimant should not have been relocated to closed conditions on 8 May 2008 (para 124). In reaching this conclusion, the panel first considered the totality of the evidence and reached a series of conclusions which included the following:
“(1) On the evidence available to the panel, the decision taken to transfer Mr Houchin to open conditions taken in 2005 was a reasonable decision… There is no basis for it now being contended that that decision was erroneous or based on an inadequate knowledge of Mr Houchin’s risk factors or levels of risk. (2) No full risk assessment had been undertaken since 2005. … … (4) Until January 2008, HMP North Sea Camp continued to assess Mr Houchin’s risk as being low enough for him to remain in HMP North Sea Camp in open conditions. … … (6) The only assessments that had occurred in or after January 2008 were those of Mr Gilbert and Ms Plank. In the case of Mr Gilbert, his assessment, without any reasonable basis, concluded that Mr Houchin should be returned to closed conditions, a conclusion he had reached at or soon after his only one-to-one meeting with Mr Houchin on 3 January 2008. The panel heard from Mr Gilbert at some length. It had in mind that Mr Gilbert had been responsible for the decision to withhold from the panel, for no good reason, the OASys prepared by Ms Plank on 2 April 2008 and the Secretary of State’s view dated 11 April 2008 and to mislead the panel on 12 April 2008 that Mr Houchin would remain in open conditions and to allow his deferred hearing in July 2008 and, without prior warning to anyone, to arrange for HMP Watton in November 2008, following the adjournment of the part-heard hearing to prepare a SARN relating to the BLB programme completed in March 2006. The panel concluded that these matters, the many erroneous and unfairly unfavourable references in his report to Mr Houchin and his partial oral evidence show that Mr Gilbert had not carried out an objectively reliable risk assessment of Mr Houchin but was concerned to make a case for his return to closed conditions irrespective of his risk levels having first decided that this move was necessary so as to extricate HMP North Sea Camp from its difficulties caused by the mis-management of Mr Houchin’s sentence whilst he had been in open conditions.”
At paragraph 125 the panel, having reviewed their conclusions, stated:
“It was clear to the panel that the decision to return Mr Houchin to closed conditions, both as recorded by Mr Gilbert and on any other basis not then considered, was flawed, unreasonable, ill-motivated and invalid in a public law sense.”
[13]The panel’s conclusions on issue 3 are set out at paragraphs 140-142 of the decision. At paragraph 140 the panel stated:
“The panel had particular difficulty in assessing Mr Houchin’s risk. Four psychologists had given written and oral evidence and each had a range of structured risk assessments to call on. Mr Houchin’s risk presents considerable difficulties for any risk assessment at the best of time but the history of his sentence since 2005 and of this review and of the circumstances in which each assessment was arranged and carried out have significantly added to those difficulties. It was also clear from the detailed but skilful cross-examination by both counsel of their opposing experts and professional witnesses that the panel could not be wholly reliant on any of the assessments.”
Paragraph 141 continues:
“The panel concluded that it should first identify common ground and then determine whether, on the basis of that common ground, Mr Houchin’s risk could be assessed with confidence currently to be sufficiently lowered to be safely managed in open conditions. On this basis, the panel concluded that Mr Houchin’s risk is sufficiently lowered and that he could immediately be transferred to open conditions. However, no unescorted leaves should be taken before he has successfully retaken the BLB programme. In practice, since that programme is no longer available in open conditions, it will first be necessary for him to complete the BLB programme in closed conditions. An OASys re-assessment should take place as soon as possible since he cannot be transferred to open conditions with his current, inappropriate, OASys assessment that places him as being a very high risk of harm. Subject to satisfactory completion of the BLB and an OASys reassessment, Mr Houchin can then immediately be transferred to open conditions. As had occurred in 2006, this transfer should take place prior to his being provided with a SARN but a SARN should be prepared and he should also be provided with a full psychological risk assessment which takes account of all relevant matters including his performance on the BLB programme. Again subject to satisfactory assessments, he should then start to take unescorted temporary home leaves, build his release and risk management plan and develop a good working relationship with his offender manager.”
The panel noted at paragraph 142(1) that “All three psychologists who undertook recent assessments, being Ms Holmes, Ms Fentem and Mr Matthews agreed that Mr Houchin needed to address further his understanding of his risk factors and the strategies that he needs to put into place to manage these risk factors. This need can be addressed by the BLB programme which is designed for exactly those purposes. Mr Matthews stated in evidence that the benefit of the BLB programme is lost if the skills that it imparts are not able to be put into practice soon after the BLB programme has been completed. These skills and those associated with the putting into practice of the theoretical knowledge acquired during the ESOTP. In reality, therefore all three assessments were recommending that Mr [Houchin] should re-take the BLB programme since that programme is intended to provide the additional knowledge that will assist in producing the practical application of the theoretically acquired ESOTP skills.”[14]In relation to Issue 4, the panel concluded at paragraph 149:
“Mr Houchin presents in precisely the same way to the panel as he did to the previous Panel and as accepted by the Secretary of State following that Panel. The panel considers that Mr Houchin’s remaining risk areas are his potential to be insufficiently aware of his risk and of his being in a risky situation, his risk management and his possible need to address risks in a relationship once he has been released. Overall, he will need to make progress gradually whilst he develops both his release and risk management plan and a good working relationship with his offender manager.”
[15]Following the decision of the panel sent out on 25 July 2009, the Secretary of State by letter dated 3 August 2009 sought some clarification in relation to paragraph 17 of the decision, it being “the view of the Secretary of State that the very serious findings of fact in this paragraph was not supported by any evidence that was before the Parole Board.”[16]Paragraph 17 of the decision reads as follows:
“17. On 14 January 2009, HMP Lincoln disclosed to the parties and to the Parole Board a copy of a SARN document prepared by HMP Whatton. This was erroneously stated to be the SARN prepared following the BLB programme completed by Mr Houchin in March 2006. In fact, the report had been prepared at short notice in January 2009 following a telephone call to HMP Whatton soon after the hearing on 5 November 2008. The Secretary of State’s witnesses were not prepared to identify this caller but it was clear to the panel from the evidence that the caller was Mr Gilbert and that he called to ask for a SARN to be prepared in time for the adjourned hearing. The panel also concluded that Mr Gilbert made the call in the light of the unfavourable evidence, from his point of view, that had been given at the hearing on 5 November 2008 so as to belatedly place before the panel a psychological risk assessment of Mr Houchin which he hoped would show Mr Houchin to be a high risk of re-offending. It is to be regretted that a psychological risk assessment was obtained in such circumstances by HMP North Sea Camp without prior warning and in disregard of the protocol for the preparation of SARNs which provides that they should be prepared within 6 months of the completion of the relevant SOTP or BLB programme and not thirty-two months later in the middle of a parole review hearing.”
[17]The Parole Board replied to the Secretary of State’s request by letter dated 3 September 2009. At paragraph 8 of the letter the panel wrote:
“It is, or should be, clear from the decision taken as a whole that the panel with considerable regret made a general finding that Mr Gilbert was a wholly unreliable witness whose evidence was unreliable and who had been ill-motivated throughout his direct dealings with Mr Houchin and in his involvement in the parole process with the sole objective of ensuring that he was returned to closed conditions at the earliest possible opportunity, irrespective of his current risk and levels of risk. This general conclusion was based on the entirety of Mr Gilbert’s evidence and of the other evidence adduced to the panel. It also has to be stated, in order to answer the Secretary of State’s amplification request that the panel found that Mr Gilbert was shown to have lied in his written and oral evidence to the panel in significant respects.”
At paragraphs 15-35 of the letter the panel elaborated on the specific findings contained in paragraph 17 of the decision. The panel concluded its response as follows (paragraph 36):
“The panel has referred to the evidence of Mr Gilbert at such length because all his evidence is closely inter-linked. Moreover, it is important for the Secretary of State to know and have placed in context a particular finding relating to a relatively small part of a long pattern of ill-motivated behaviour.”
[18]By letter dated 13 November 2009 the Claimant was informed that the Secretary of State did not accept the recommendation of the Parole Board that he be transferred to open conditions. The material parts of the letter, containing the Secretary of State’s reasons, state (1/2/269-270):
“…Given the difficulty the panel had in assessing the risk you present, and also the fact that they have identified the need for you to undertake further work on sexual offending and possibly Domestic Violence, the Secretary of State is not persuaded it is appropriate for you to transfer to open conditions at this time. Neither does he accept that the prison psychologist’s evidence, and in particular that of Ms Fentem, who completed the SARN report was unreliable. Indeed, the SARN report points to a need to undertake the HRP, and the panel themselves have identified a possible need for work on Domestic Violence. In particular, you will be aware from the Treasury Solicitor’s letter of 30 October 2009 that the Secretary of State has raised very serious concerns about the panel’s conclusions about the reliability of the SARN, based as they are on a fundamentally flawed approach to the evidence concerning the circumstance in which is was prepared. For the avoidance of any doubt, the Secretary of State also does not agree with the panel’s view that your visits to female or unisex hairdressers, and explanations for such, did not give rise to any concerns about your insight and risk, nor that the issues raised by your ex-wife in the injunction and divorce proceedings should be disregarded for the purposes of assessing your risk, but it is unnecessary to address these matters further in the light of the panel’s recommendation that, even based on its assessment of your risk, you undertake the BLB before any transfer to open conditions. The panel deemed it appropriate for you to re-do the Better Lives Booster in open conditions if possible, but failing that in closed conditions followed by an immediate move to an open establishment where post-programme assessments could be completed. Whilst it is not within the Parole Boards’s remit to specify particular programmes, the Secretary of State agrees that because of the nature of your offending and your risk factors, it is appropriate that you should undertake the programme. Better Lives Booster is only available in closed conditions. The Secretary of State understands that you have recently been assessed and found suitable for the programme. Prior to doing the BLB you will be assessed as to your suitability for the Healthy Relationships Programme (HRP)… … The Secretary of State does not agree that the BLB should be completed prior to assessment for and completion of the HRP. Because the BLB draws together learning from previous courses it is preferable that the HRP is completed first if it is deemed appropriate for you to do the programme. Furthermore, because completion of an offending behaviour programme is not in itself indicative of a reduction in risk, the Secretary of State does not accept the panel’s recommendation that you should be transferred to open conditions immediately following undertaking the BLB. Indeed, the Secretary of State knows that the panel itself repeatedly refers to the need for you to “satisfactorily” complete the BLB before any transfer to open conditions. Therefore, once you have finished the programme, the level of your engagement and the benefit you have gained will need to be considered at the post-programme reviews along with the need for any further work, before the issue of your potential transfer to open conditions should be considered. The Secretary of State also takes the view that it is appropriate for the Parole Board to have the opportunity [to advise] upon this issue, based on up to date risk assessments and reports, in order to assist him in determining whether it would then be appropriate for you to be moved to open conditions.”
The timetable that the Secretary of State proposed was that that the parole review would commence in June 2010 and that the Claimant’s case would be considered by the Parole Board by the end of December 2010.[19]Following the Parole Board decisions there was a disciplinary investigation of Mr Gilbert under the Lincolnshire Probation Area disciplinary procedure. Mr Howard Lockwood, the Investigating Officer, submitted his report in December 2009 (1/2/273-286). The investigation focused, in particular, on the criticisms of Mr Gilbert made in paragraph 17 of the Parole Board decision. The report concluded at paragraph 7.10 that “There is not one witness who would support the view that [Mr Gilbert] has, in any way, been ill-motivated, lied, created an incident or suppressed evidence”.[20]The Claimant challenged the Secretary of State’s decision of 13 November 2009, together with various other decisions including that of 8 May 2008 to transfer him from open to closed prison conditions. On 10 March 2010 Wilkie J gave judgment following a “rolled up hearing” for permission to apply for and, if granted, the application for judicial review of decisions made by the Secretary of State for Justice.[21]Wilkie J decided that the letter of 13 November 2009 was not a lawful response to the decision of the Parole Board for the reasons given at paragraph 84 of his judgment:
“…the Claimant is right to characterise this letter as Wednesbury unreasonable. …what this letter wholly fails to have regard to is the exceptional nature of the circumstances in which the advice was sought, the exceptional nature of the Parole Board hearing, the exceptional nature of the level of scrutiny given, both to the documentation and the oral evidence – subject to cross-examination on both sides – and the exceptionally long and detailed nature of the decision itself. In my judgment, the way in which the Secretary of State has stated his disagreement with the main conclusions of the Parole Board is so cursory and lacking any supporting argument that it is evidence of only the most superficial consideration of the decision. In light of that I am driven to the conclusion that the views expressed by the Parole Board have scarcely been given any consideration at all. This is supported by the fact that, in dealing with the Parole Board’s assessment of current risk, the Secretary of State has focused exclusively on the statement by the Parole Board that it found the matter to be one of some difficulty for reasons including, the inherent and unreliability of the psychologists’ reports. He has wholly failed to take into account the way in which the Parole Board stated it was going to deal with the matter, notwithstanding those difficulties, and the clear conclusion to which it came, which was consistent with its detailed analysis of and consideration of the other issues which it had identified for itself.”
[22]Wilkie J however made clear he was not concerned with the question of motivation for the Claimant’s relocation from open to closed conditions on 8 May 2008 (Issue 2 in the Parole Board’s decision).

The judge observes:

“Whilst it exercised the Secretary of State it did not inform his letter of 13 November so I do not consider that I have to deal with it” (para 70). Further Wilkie J noted that the correctness, or otherwise, of the Parole Board’s conclusions in its decision of July 2009 had not been the subject of substantive debate before him. Accordingly he did not consider it would be appropriate for him to issue any relief in relation to the decisions of 8 May 2008 (para 101). He added: “The issue of whether those decisions were lawful or not is one which as Collins J recognised should now be determined in any parallel civil proceedings which may be commenced.”
[23]Having decided that the response of the Secretary of State on 13 November 2009 was an unlawful response to the advice given by the Parole Board, the judge gave a declaration to that effect. When considering whether to grant mandatory relief Wilkie J noted (para 104):
“…the Parole Board panel did not envisage an immediate transfer to open conditions because, as it indicated, it was necessary for the Claimant to undergo the BLB programme which is only available in closed conditions. He could not, therefore, be transferred to open conditions until he had satisfactorily completed that course.”

The judge continued:

“...his completing the course satisfactorily must be a matter of substance not simply a matter of form. He could not properly be considered to have satisfactorily completed the BLB course until the review of his performance on that course has taken place in the form of a post programme review. Furthermore, the Parole Board panel did envisage the Claimant should be assessed for an appropriate level of HRP…(Para 104).”
[24]Having regard to those matters Wilkie J granted relief in a mandatory form requiring the Claimant to be transferred to open prison conditions immediately upon the following steps being completed (para 105):
“1. His satisfactory completion of a BLB, to include any post programme review of his performance on that course. 2. A re-assessment of his suitability for an appropriate HRP by a forensic psychologist…, such assessment to be conducted as soon as possible without necessarily waiting the completion of the BLB. 3. The completion of any HRP for which the claimant is assessed as having a need in the event that such a course may only be delivered in closed conditions. 4. There to be no requirement before his re-transfer to open conditions for any further Parole Board review.”
[25]The Claimant successfully completed the BLB on 13 August 2010. He was assessed as requiring the moderate intensity HRP. On 17 January 2011 a SARN was completed which assessed the Claimant’s risk as suitable for open conditions in light of the progress he had made in addressing his risk factors. The HRP was successfully completed in around November 2011. He was transferred to open conditions at HMP Lindholme on or around 16 May 2012.

Misfeasance in Public Office

[26]In Three Rivers District Council v Bank of England (No.3) [2003]2 AC 1 Lord Steyn at 192B-C explained that there are two different forms of liability for misfeasance in public office:
“First there is the case of targeted malice by a public officer, i.e. conduct specifically intended to injure a person or persons. This type of case involves bad faith in the sense of the exercise of public power for an improper or ulterior motive. The second form is where a public officer acts knowing that he has no power to do the act complained of and that the act will probably injure the plaintiff. It involves bad faith in as much as the public officer does not have an honest belief that his act is lawful.”
[27]The first form is referred to as “targeted malice” and the second as “untargeted malice”. Lord Hobhouse explained the difference as follows: “targeted malice” is where “the official does the act intentionally with the purpose of causing loss to the plaintiff, being a person who is at the time identified or identifiable”; “untargeted malice” is where “the official does the act intentionally being aware that it will in the ordinary course directly cause loss to the plaintiff or an identifiable class to which the plaintiff belongs” (at 231).[28]In the second form the claimant has to prove that the public officer acts knowing that he has no power to do the act complained of or with reckless indifference as to the lack of such power that the act will probably injure the claimant. In relation to untargeted malice, “lack of power” is used in the sense of public law unlawfulness. Lord Hobhouse said at 230:
“This may arise from a straightforward breach of the relevant statutory provisions or from acting in excess of the powers granted or for an improper purpose... The test is the same as or similar to that used in judicial review.”
[29]As to the reckless form of untargeted malice, the claimant has to prove that the public officer acted with a state of mind of reckless indifference to the legality of his act and its consequences. Recklessness is sufficient but only in its subjective sense (see Clerk and Lindsell on Torts (20th ed. 2010), para 14-107). As to the reckless form of untargeted malice, the nature of the state of mind required is apparent from what Lord Hope said in relation to damage at p.252 [62]:
“Recklessness is demonstrated where it is shown that the public officer was aware of a serious risk of loss due to an act or omission on his part which was unlawful but chose deliberately to disregard that risk. That is sufficient to establish that he did not have an honest belief in the lawfulness of the conduct which, to his knowledge, gave rise to that risk. Recklessness about the consequences, in the sense of not caring whether the consequences happen or not, will satisfy the test.”
[30]Causation is an essential element of the Claimant’s cause of action. In Three Rivers Lord Steyn said at 194:
“It is a question of fact. The majority in the Court of Appeal and Auld LJ held that it is unsuitable for summary determination. That is plainly correct.”
[31]The employing authorities will be held vicariously liable for the misfeasance in public office of their employees if they acted in the course of their employment (Racz v Home Office [1994] 2 AC 45).[32]An essential ingredient of the tort of misfeasance in public office is proof of special damage (Watkins v SSHD [2006] 2 WLR 807).[33]An application to strike out should not be granted unless the claim is bound to fail (Hughes v. Colin Richards and Co [2004] EWCA Civ 266). In order to defeat a claim for summary judgment it is sufficient for the respondent to show some prospect of success. In Three Rivers Lord Hobhouse said at para. 158:
“The criterion which the judge has to apply under Part 24 is not one of probability; it is absence of reality. The majority in the Court of Appeal used the phrases “no realistic possibility” and distinguished between a practical possibility and “what is fanciful or inconceivable” (ante, p83 H). Although used in a slightly different context these phrases appropriately express the same idea.”
Mr Iain Daniels, for the Defendant, suggests that the Claimant places his case firmly in the context of targeted malice. His assertion is that Mr Gilbert improperly decided that he, the Claimant, should be returned to closed conditions and then did all he could to ensure that took place. However, Ms Heather Williams QC, for the Claimant, submits that this is a case of untargeted malice. It is common ground that if the conditions for misfeasance are made out, the Defendant will be held vicariously liable. Further it is not in dispute that the Claimant’s transfer from closed to open conditions amounts to special damage (see Karagozlu v Commissioner of Police of the Metropolis [2007] 1 WLR 1881 CA).

The parties’ submissions and discussion

[34]Mr Daniels submits that there is no credible motive for Mr Gilbert to act maliciously and there is no evidence that he was motivated by malice. The reasons set out in the LISP4, he submits, were credible, evidenced and fair; they created a sustainable argument for the Claimant’s return to closed conditions. Further Mr Gilbert’s view was shared by other professionals including Ms Rawlings, the prison psychologist at North Sea Camp, and Ms Plank, the Claimant’s Home Offender Manager, an independent probation officer employed by the Medway Offender Management Unit in the Kent Probation Area, who prepared an OASys report. Indeed the decision to regress the Claimant had already been made by the Secretary of State following receipt of the OASys. In any event the decision to regress the Claimant was not made by Mr Gilbert; it was made by the Secretary of State. The LISP4 is a recommendation to the Secretary of State’s Public Protection Casework Section that a prisoner be returned to closed conditions. The basis for such a recommendation is contained in PSO 4700 and includes “Doubts about the extent to which relevant risk factors have been adequately addressed”. The position adopted by the Secretary of State has been maintained throughout, even after the trenchant criticism of Mr Gilbert by the Parole Board. Further Wilkie J ordered that the Claimant should remain in closed conditions until he had, at least, completed the BLB programme and been assessed as having done so satisfactorily (see paras 22-23 above).[35]It is not suggested that Mr Gilbert had any reason to dislike the Claimant. Further Mr Gilbert was not directly engaged by the Prison Service and had no obvious reason to conceal any incompetence on its part, as the Claimant suggests was his motive. Indeed the purpose of his secondment as Lifer Manager was to address problem cases such as the Claimant’s which the Prison Service had not properly dealt with. The report by HM Chief Inspector of Prisons following an inspection of HMP North Sea Camp dated August 2007 records:
“HP33 Sex offenders constituted around 10% of the population. Many have been held at the prison for some time without any opportunity to continue addressing their offending behaviour. Except for a few lifers, who were being ‘caseworked’ by members of the lifer team, no other ongoing work was carried out with sex offenders. There were no local policies or procedures to help ensure that sex offenders were treated appropriately or to help minimise deterioration during their time in open conditions. Lifers in general also needed more help to minimise the risk of future re-offending.”
Recommendations for Offending Behaviour programmes included:
“3.65 A local policy for the management of prisoners convicted of a sexual offence should be produced to help ensure that they do not deteriorate during their time in open conditions. 3.66 Based on the results of a needs analysis, suitable provision should be made for prisoners to participate in appropriate programme work.”
[36]Mr Daniels submits that Mr Gilbert looked at the Claimant’s case afresh in relation to his conduct in open conditions, as he was entitled to do. The contemporaneous evidence, he submits, points to Mr Gilbert having an entirely appropriate concern with regard to the Claimant’s case. On 8 February 2008 Mr Gilbert sent an e-mail to Ms Skett, the Area psychologist, (1/2/355) which indicates his concern that the Claimant is simply being held in the system with no-one supporting his release. Mr Gilbert wrote:
“As you probably know I am acting as life manager at NSC. Going through some cases I have identified one in particular who given cause for considerable concern. His name is Alan Houchin. He has been here for some time and has made no progress due to being HR [high risk] of harm. There have been two MAPPA meetings on this man attended by MSC staff which only serve to up the anxiety levels about his risk. He remained here however and there appears to have been no strategy for doing anything with him. … I take the view that we must not sit on him any longer but don’t feel that we can regress him, even though there is no support for his release. … Have you any suggestions as to what to do in situations such as this. …”
Have you any suggestions as to what to do in situations such as this. …”[37]In the course of the drafting of the LISP4 report Mr Gilbert entered into further e-mail correspondence with Ms Skett. On 12 March Ms Skett wrote:
“Initial thoughts are around exploring the current offence in more depth and also current potential risk factors (simply to give more ammunition for putting him back to closed conditions). For e.g. does he have sexual fantasies about young women? What are the circs of the current offence and can you see offence paralleling behaviours in current bhav (e.g. any parallels regarding him chatting up female hairdressers and how he managed to access the current victim?). Also are there any parallels between the original offence and the current offence. E.g. was strangulation evidence in both cases? …”
On 13 March Mr Gilbert replied indicating that he will look for parallel behaviours but if they are not present he will be relying on the Claimant’s failure to take much from the Sex Offenders Treatment Programme which Ms Skett herself notes. Mr Gilbert wrote:
“If I can’t evidence any paralleling behaviours I’m relying on the clear evidence that he has not gained much from the SOTP. It sounds as though this will not be enough to re-cat [re-categorise] him.”
[38]In paragraph 56 of the Particulars of Claim it is contended that Mr Gilbert deliberately manipulated the material available to him in preparing the LISP4 report, in particular in 10 respects. (i). Transfer to open conditions was of an automatic kind.[39]Mr Gilbert’s statement that the Claimant’s move to open conditions in 2006 was “of an automatic kind” having completed the SOTP, was fair and must be read with a qualification “in many ways”. Ms Williams submits that it was utterly inadequate to describe the Claimant’s transfer to NSC as of an automatic kind. The transfer was after careful consideration of his case. The Claimant was granted open conditions at the Parole Board hearing at HMP Albany on 11 March 2005 [2/3/47], prior to completing the Booster Element of the SOTP. Following completion of the BLB, in closed conditions, he did not have a SARN to evidence a lowering of his risk but he was moved almost immediately to open conditions. Ms Williams observes that the BLB (a skills refresher course) is qualitatively different from the SOTP (which concerns core offending behaviour risk reduction work) and the Parole Board had recommended that he undertake this course after he was transferred to open conditions in any event. (ii). Claimant had largely avoided the Lifer Department.[40]It was Mr Gilbert’s opinion that the Claimant had “largely avoided the Lifer Department” whilst at HMP North Camp, but Mr Gilbert did also state that he had not been managed adequately (“Management of his case has been low key and in many senses non existent”). (iii). Coughing fit.[41]What is contained in the LISP4 about the coughing fit is consistent with the Security Officer’s report and also the summary of the Security File sent to Mr Gilbert on 29 February 2008 by Mr Simon Hudson HMP North Sea Camp’s Security Analyst, which stated (1/2/350):
“Report relates to information that whilst being interviewed by a member of staff [Ms Rawlings], it was felt that he became controlling when they suffered a coughing fit. Although he did not act inappropriately he continued a constant controlling dialogue in that he kept telling her to have a drink of water and asking if she was alright. It was further reported that an Officer who overhead the exchange also concurred with the perception of ‘control’.”
Although this incident on 2 November 2006 was not reported at the time, subsequently Ms Rawlings did submit a report in which she claimed that he:
“Became very controlling taking advantage of me coughing hence not fully in control. He did not use any inappropriate language but he continued with a constant controlling dialogue. This was overheard by a uniformed member of staff who concurred with the perception of control.”

The Security Officer commented:

“[Ms Rawlings] states Houchin kept telling her to drink water and asking her if she was alright. She felt this was in a controlling manner. Did not feel threatened, no cause for concern re additional security.”
Mr Daniels suggests it is significant that Mr Gilbert did not seek to rely on the rather more serious version of this incident given to the MAPPA meeting on 26 July 2007 where it is recorded (2/5/60); “...it was believed that he had become sexually aroused when the Prison Psychologist had had a coughing fit during one of the psychology sessions, and additionally he had stated that he would actively seek out prostitutes on his release. Mr Houchin had stated that he was interested in working as a builder when released, which raised concerns that he would be visiting peoples’ homes, where there could be a lone female. The impressions of Mr Houchin were that he was well educated and articulate, but manipulative and controlling, somewhat obsessed by self image. It was believed that he had used the situation with the Psychologist to gain control, and had been aroused by the incident as it simulated strangulation, which he had previously stated he enjoyed during intercourse. Apparently he had also shown intimidating behaviour towards a prison officer on another occasion.” Ms Williams describes the “coughing fit” as a minor incident. She submits unsurprisingly no action was thought appropriate at the time. Mr Gilbert presented the incident in the LISP4 incorrectly as an established example of “when the Claimant became controlling with a female member of staff”, saying that he “has reacted in a controlling way to a situation involving his NSC psychologist”. The Security Officer commented: (iv). and (v): Previous Reports and Lack of Insight.[42]Mr Gilbert failed to reflect in the LISP4 that all relevant reports were positive, for example the STOP, ESOTP and BLB reports all indicated a good level of insight on the Claimant’s part, that his response to treatment was good and that he complied and engaged with the programmes. However Mr Daniels submits Mr Gilbert was entitled to make the observations he did relying on the reports of Ms Rawlings and Ms Plank. Following transfer, in an OASys assessment dated 22 June 2006 (2/5/1) Ms Rawlings raised the Claimant’s risk of harm from “medium” to “high” for both the public at large and known adults categories, and concluded (2/5/268):
“The Psychopathy assessment or Risk Matrix assessment individually would give cause for concern. The fact that these high risk indicators are combined suggests grounds for extreme caution in respect of Mr Houchin’s risk to the public. The sex offender treatment programmes cannot be assumed to have reduced risk. Indeed in Mr Houchin’s case there are indications that he has not experienced treatment gains through his personality traits and denial. Mr Houchin is a risk to staff in so far as he is highly likely to manipulate staff. He is less likely to present physical harm to staff. There is currently sufficient evidence to suggest that Mr Houchin remains a significant risk to the public on temporary release.”
[43]On 13 October 2006 Mr Glenn Spencer completed an OASys Two which assessed the Claimant’s risk in the community to the Public and Known Adults as “High”. The assessment stated, inter alia (at 2/5/44):
“R10.2 What is the nature of the risk … in relation to the second offence [rape] I can see no reduction in risk whatsoever. Whilst Mr Houchin displays appropriate empathy for the murder victim, he shows none whatsoever for the rape victim due to his continued denial of the offence. There is evidence available to suggest domestic violence towards his second wife which again indicates a propensity for violence towards a known adult. R10.4 What circumstances are likely to increase risk … I would recommend that ANY negative changes in attitudes or behaviours be investigated in a serious manner due to the lack of insight/denial regarding the offence of rape in 1979. Mr Houchin believed that he did nothing wrong in 1979 and that the sex was consensual. If he believes that he did not commit the offence and did nothing wrong he will repeat the offence in the belief that his actions are normal and correct. There is sufficient evidence to suggest that Mr Houchin remains a significant risk to the public in temporary release.”

R10.4 What circumstances are likely to increase risk

[44]In a LSP3E Progress Report dated 29 November 2006 Ms Rawlings commented on the Claimant’s lack of awareness and insight into his offences, using the Risk Matrix 2000 assessment, that the Claimant presents a “High” risk of sexual offending, and a “High” risk of violent offending. The combined risk of either a sexual or violent offence would be “High” (2/5/273 at para 6.2). She concludes that she is unable to recommend release into the community (para 6.17).[45]On 15 February 2007 there was a further OASys assessment produced by Kent Probation Service at which the risk was assessed as the same as in October 2006.[46]In a further LSP3E Addendum Report dated 9 November 2007 Ms Rawlings’ summary and conclusion includes the following: “4.2 Treatment recommendations are difficult to suggest as Mr Houchin denies his index offence, the rape aspect of the sexual murder offence, and denies assaulting his ex-wife and attempting to throttle her. Additionally Mr Houchin is motivated to achieve release rather than to consider offence-focussed work. 4.3 However, given the indicators of current risk, and Mr Houchin’s lack of insight into the need to manage his risk, I cannot currently recommend release into the community.” (2/5/11). She refers to his lack of insight and views both his static and dynamic risk as high.[47]Ms Plank stated (1/2/184) that she interviewed the Claimant at length on the telephone on 25 March 2008. On 27 March 2008, following that telephone conversation, Ms Plank produced a new OASys assessment which confirmed the 2006 and 2007 assessments of risk as “high”. The Parole Assessment report prepared by Ms Plank dated 1 April 2008 (2/5/67) assessed the Claimant’s risk of sexual and violent offending as high. She recommended a move to an establishment where he could undertake more offender behaviour programmes. These concerns are reflected in the OASys dated 2 April 2008 completed by Ms Plank and countersigned by her superior, Mr Ian Morgan (1/2/123, in particular at 166-167). Mr Morgan noted that “at a recent map [MAPPA] meeting [27 March 2008] it was agreed that this offender poses a very high risk of harm to the public particularly if he is released” (2/3/146). (vi). Hairdresser episodes.[48]In the summer of 2007 it was reported that the Claimant on one or two occasions had visited a unisex hair salon where female hairdressers work, on an escorted visit to the town. Ms Williams notes that no action was taken at the time, other than the Claimant (quite sensibly, it might be thought) ceased such visits when this was drawn to his attention. Ms Williams is critical of Mr Gilbert resurrecting this matter as one of apparent considerable significance in early 2008. Mr Daniels refers to the concerns Mr Hudson sets out in a memo dated 29 February 2008 (1/2/351-2):
“His need to have his haircut in a unisex salon at expensive cost when he is careful with his money when it comes to eating when on town visits. The fact that he stopped going to the unisex salon when challenged about it would tend to indicate that he possibly was not going there for style purposes, but that it could have been so that he could get close to young females.”
Mr Gilbert sets out the facts of these encounters in the LISP4 and states “On the face of it this is not such a problem however…”. Mr Daniels suggests that this wording makes clear it is for the reader of the report to make up their own mind as to whether they have the same concerns as Mr Gilbert and Mr Hudson; however it was of enough concern for the prison officer who accompanied the Claimant to report it. Ms Williams criticises Mr Gilbert in choosing to characterise these events, which were on any reasonable view, at best, highly equivocal, as establishing two things: “one for certain is that he has little interest in relapse prevention and the other is that he continues to have an interest in teenage women”. (vii). Misquoted ESOTP Report.[49]Mr Gilbert did Ms out a passage from the ESOTP report of 22 November 2004 (2/3/31). Mr Daniels suggests it is clear what Mr Gilbert was trying to do was to draw to the reader’s attention his view which is supported by reports of Ms Rawlings and Ms Plank that the gains the Claimant made from past treatment had not been retained. (viii). Absconding.[50]Mr Gilbert expressed the view that the risk of absconding was not eliminated by reason of the previous escape, the facts of which would be known to the Secretary of State. Ms Williams points out this was in fact in 1993 when the Claimant absconded for 14 days while on compassionate leave visiting his dying father, no charges were brought and he was assessed as no longer an abscond risk whilst still in closed conditions (see Parole Board decision, para 92). Ms Williams suggests that the only basis for stating that the Claimant was an abscond risk was asserted by Mr Gilbert in his evidence to the Parole Board to have been the security report in respect of the 27 March 2008 telephone call between the Claimant and his sister. The panel found that Mr Gilbert’s attempt to rely on this conversation as evidence that he had become an abscond risk was “completely misplaced” (para 92). (ix). Denial of rape.[51]Ms Williams submits that the comments in the report gave no indication that the Claimant’s denial of the rape had been taken into account in the materials before the 2005 Parole Board review and in its determination, when the Claimant was assessed as suitable for open conditions (see the report of Ms Capelin dated 17 December 2004, in particular at paras 3.3, 5.1 and 6.5). However, Mr Daniels submits, the LISP4 was dealing with the current position. Since 2006 the reports from persons, in particular Ms Rawlings, tasked with considering the Claimant’s risk did indicate concern that his denial of the rape impeded his treatment and showed a lack of self-insight into his behaviour.

(x) The view of other professionals

[52]Ms Rawlings and Ms Plank did support a move back to closed conditions. At the MAPPA meeting on 27 March 2008 the Claimant was upgraded from a level 2 to a level 3 risk (2/3/189). The minutes of the MAPPA meeting on 27 March 2008 recorded that the meeting was attended by Kent Probation, Mr Ian Morgan, senior probation officer, in the Chair, Kent Police and representatives from HMP North Sea Camp Lifer Department and Probation. The Chair expressed the panel’s serious concerns that included there was no sign of any insight into the risk of harm the Claimant presents to women and concluded “Given the very high level of risk, referral to level 3 MAPPA would be made” (2/3/189). The Risk Assessment Management Panel meeting on 1 May 2008 (1/2/195) was chaired by Mr Gilbert, but others in attendance included Mr Sutherland, Deputy Governor and Mr Webb, a Governor, who agreed that the Claimant should be returned to closed conditions.[53]The Claimant relies on four matters as further supporting his case that Mr Gilbert was acting in bad faith (para. 58 of the Particulars of Claim). Mr Daniels submits that none of these can be substantiated for the following reasons: i) The Email exchange between Mr Gilbert and Ms Skett. The 8 February 2008 (1/2/355) email expresses the view “I don’t feel we can regress him”, which Mr Daniels comments is not evidence of a definitive and final position. The March emails, following a draft of the LISP4 being supplied to Ms Skett, Mr Daniels acknowledges do show a more positive move to regression. However following that Ms Plank produces her OASys assessment on 2 April 2008 (1/2/123) which recommends a move to closed conditions. ii) The “exaggeration” of the hairdressing episodes. The facts stated by Mr Gilbert were accurate (see para 48 above) and his interpretation of them is supported by Mr Hudson. iii) and (iv) The deception of the parole board on 14 April 2008 and the failure to follow PSO 4700. Whether the conduct of Mr Gilbert and the Prison Service in respect of these matters can be justified or not, Mr Daniels submits, they do not evidence bad faith in respect of the recommendation Mr Gilbert made in the LISP4.[54]Ms Williams refers to Ms Plank’s inability to explain at the parole hearing why she had raised the Claimant’s risk of harm to the public to “very high” in the second OASys she completed on 2 April 2008. Ms Williams notes that on 13 September 2007 the Defendant provided a “view” in connection with the eleventh parole board review stating that the Claimant could and should be in open conditions “having made good progress throughout his sentence with regards to completing relevant offending behaviour programmes which shows obvious reduction in risk”. Ms Williams submits that the precise influence of Mr Gilbert’s misrepresentations on Ms Plank’s OASys assessment, and upon others involved in the management of the Claimant’s case at HMP North Sea Camp can only be determined following consideration of the evidence at trial.[55]Mr Daniels submits that in any event the claim must fail on causation. Mr Gilbert was not the decision-maker; the decision was taken by the Secretary of State’s Public Protection Casework Section (“PPCS”). The Secretary of State’s letter of 11 April 2008 (1/2/188) makes it clear that the Secretary of State was of the view that the Claimant should be in closed conditions. The “proforma Secretary of State’s view” dated 11 April 2008 records that the Secretary of State noted that an OASys risk assessment had been completed on the Claimant which placed him at a high risk of harm to the public and to known adults, which suggests that the Defendant is there referring to the first, not the second, OASys assessment of Ms Plank. The Defendant further noted “There are no recommendations from report writers for Mr Houchin’s release. It is felt that there is still work to be undertaken specifically around the area of sexual offending. It is recommended that Mr Houchin transfer to an establishment where he could undertake more offender programmes, with specific reference to rape and gain a greater insight into his offending behaviour. The Secretary of State’s view is that Mr Houchin remains in closed conditions to continue further offending behaviour work especially in the area of sexual offending.” (1/2/189). The Defendant plainly appreciated that the Claimant was then in open, not closed, conditions. It is likely that the use of the word “remains” was mistakenly used; rather the recommendation was that he “returns to” closed conditions.[56]The Secretary of State’s letter of 11 April 2008 pre-dates receipt of the LISP4 and is in response to the OASys risk assessment of April 2008 and the HCR-20 assessment, and not Mr Gilbert’s views in the LISP4. However Mr Daniels accepts the PPCS would in all probability have received the LSP3E (“Progress Report by Seconded Probation Officer”) dated 5 March 2008 from Mr Gilbert containing his opinion that the Claimant be transferred to closed conditions before the letter of 11 April 2008 was written. Mr Gilbert stated at paragraph 9 of the report:
“It is my hope that the Offender Management Unit can arrange for Mr Houchin to be moved to an establishment which will allow him to work again on his offending behaviour and associated risks and perhaps begin to gain the insight into his behaviour necessary to satisfy his risk managers that he really does present a reduced risk of re-offending in the future. It is with great regret in view of the length of time Mr Houchin has been in custody that I cannot support release. Until steps are taken to work on his 1979 offence and to raise his personal awareness of such I do not believe he will be ready for release.”
I accept Mr Daniels’ submission that it is likely that the Secretary of State’s recommendation made on 11 April 2008 that the Claimant return to closed conditions was based on the LISP3E completed by Mr Gilbert on 5 March 2008 (2/3/50) and that the Secretary of State maintained that view having received the LISP4. Mr Daniels relies on the position of the Parole Board, the response of the Secretary of State following the Parole Board’s decision and the judgment of Wilkie J all to the effect that the Claimant needed to undertake further offending behaviour work and establish the benefit of that work prior to his return to open conditions as creating further problems for the Claimant on causation.[57]Ms Williams refers to the decision of the Parole Board in July 2009 that directed that the Claimant was suitable for immediate transfer to open conditions and the completion of the BLB course was not necessary to address his risk level. They however advised that the Claimant should undertake the BLB course prior to being granted unescorted temporary leave due to the lapse of time since he last completed it and the lack of opportunity to put the skills he had learnt into practice, as the BLB is a refresher course, intended to equip attendees with skills they can immediately utilise. At the time, the BLB course was, for operational reasons, only available in closed conditions. Ms Williams submits that the Claimant was required to retake the BLB course solely because of the lapse of time since he had last completed it, due in turn solely to the mismanagement of his case in the preceding two years at North Sea Camp and the consequent lack of opportunity to practise the skills he had required on the previous course. Ms Williams submits that as of January 2008 it was not too late to ask for a SARN; or a properly prepared case could have been put before the Parole Board for the hearing on 14 April 2008 and the Parole Board could have taken the decision as to how to progress the Claimant. There was no need, she submits, for Mr Gilbert to take the decision when he did.[58]Mr Daniels reminds me that I am not bound by the decision of the Parole Board and that the Claimant does not choose to rely on the “golden bullet” upon which he suggests, the Parole Board’s decisions were heavily dependent (see paras. 10-14 of the Parole Board’s decision of 3 September 2009). This refers to an email in which it was suggested that Ms Skett and Mr Gilbert discussed creating or generating an incident to justify the Claimant’s regression. Mr Daniels submits that the findings made by the Parole Board in this regard, which were investigated and discounted by the Defendant, coloured the Parole Board’s view of the entire case and in particular the contents of the LISP4.[59]It is not alleged that Mr Gilbert overbore or suborned Ms Rawlings, Ms Plank or any other person. There is no allegation of misfeasance against any other individuals. The highest Ms Williams puts her case is that Ms Plank was influenced by Mr Gilbert’s expressed views.

Conclusion

[60]Mr Gilbert took up the position of acting Life Manager at HMP North Sea Camp on 1 January 2008. He had no reason to dislike the Claimant personally. In the light of the report by HM Chief Inspector of Prisons, published a few months earlier, it was entirely appropriate for Mr Gilbert to look at the Claimant’s case afresh. There was no reason for him to divert criticism from persons at the prison previously responsible for the Claimant’s case, and he did not do so. He found, as he told Ms Skett, the Area Psychologist, that the Claimant had made no progress due to being a high risk of harm and there appeared to have been no strategy for doing anything with him (para 36 above). Mr Gilbert was not required to wait until the next Parole Board hearing in April 2008 before taking action. He was entitled to make a recommendation, in a LISP3E or LISP4 report, that the Claimant be returned to closed conditions, if he considered it appropriate to do so, and it was then for the Secretary of State to decide whether to accept the recommendation or not.[61]Between June 2006 and November 2007 there were a number of reports and OASys assessments completed by Ms Rawlings and other professionals that concluded the Claimant posed a high risk of harm (paras 42-46). Mr Gilbert’s view that the Claimant should be returned to closed conditions was shared not only by Ms Rawlings, but also by Ms Plank, an independent probation officer. Having interviewed the Claimant on 25 March 2008, Ms Plank produced on 27 March 2008 an OASys assessment which confirmed the 2006 and 2007 assessments of risk as “high” (para 47). There is no evidence that Ms Plank was influenced by Mr Gilbert in making that assessment. It was that assessment which was before the Secretary of State when the letter of 11 April 2008 was written making it clear that the Secretary of State was of the view that the Claimant should be in closed conditions (para 55).[62]In addition to these reports and assessments, there are the opinions expressed at the MAPPA meeting on 27 March 2008 and the Risk Assessment Management Panel meeting on 1 May 2008 (para 52). It is not suggested that Mr Morgan, Mr Sutherland or Mr Webb were under the influence of Mr Gilbert.[63]The Secretary of State did not agree with the Panel’s view that the Claimant’s visits to female or unisex hairdressers, and explanations for such, did not give rise to any concern about the Claimant’s insight and risk (para 18). Plainly it was of concern to the prison officer who accompanied the Claimant and to Mr Hudson (para 48). The coughing fit incident was also of sufficient concern to Ms Rawlings to report it, albeit not at the time (para 41). It cannot be improper for Mr Gilbert to have taken these matters into account when considering how best to progress the Claimant.[64]I have had regard to the decision of the Parole Board and their criticism of Mr Gilbert, in particular with regard to what they describe as his “ill-motivated behaviour” (para 17). However, an examination of the evidence relied upon in support of this claim for misfeasance leads me to the conclusion that there is no credible motive that would have led Mr Gilbert to have acted maliciously and there is no evidence that he was motivated by malice. The LISP4 completed by Mr Gilbert did contain inaccuracies that Ms Williams has highlighted. However in my view there is no evidence that Mr Gilbert acted dishonestly or in bad faith. The reports of Ms Rawlings, Ms Plank and other professionals provided a proper basis for Mr Gilbert to recommend to the Secretary of State that the Claimant be returned to closed conditions.[65]In my judgment the Claimant has no real prospect of succeeding on the claim. Accordingly the Defendant is entitled to summary judgment.