Pitchfork, Application for Reconsideration by the Secratary of State [2023] PBRA 136 (26 July 2023) [2023] PBRA 136

PBRA
Pitchfork, Application for Reconsideration by the Secratary of State [2023] PBRA 136 (26 July 2023)
[2023] PBRA 136 · 2023-06-15
[1]This is an application by the Secretary of State for Justice (the Applicant) in the case of Pitchfork (the Respondent) for reconsideration of a decision of an oral hearing panel dated 15 June 2023 to direct release.[2]The Respondent has changed his name. There is no need for me to use his new name in this document. He is entitled not to have his new name known unless it is necessary, and the use of his old name will mean that if this document should become public his new identity is preserved. The oral hearing panel, the Applicant and the Respondent's legal representatives have taken the same approach.[3]Rule 28(1) of the Parole Board Rules 2019 (as amended by the Parole Board (Amendment) Rules 2022 ) (the Rules) provides that applications for reconsideration may be made in eligible cases (as set out in Rule 28(2)) on the basis(a) that the decision contains an error of law,(b) that it is irrational and/or(c) that it is procedurally unfair.[4]I have considered the application on the papers. These are: · The Decision Letter; · The Application for Reconsideration, dated 5 July 2023 and settled by counsel; · The Respondent's Response, dated 12 July 2023 and also settled by counsel; · The Dossier, which runs to 1167 numbered pages in the version I have, ending with emails concerning the release of legal submissions to individuals who had observed part of the hearings; and · The audio recording from both hearings. Background[5]The Respondent is now 63 years old. In 1988, when he was 27, he received a sentence of life imprisonment for two offences of murder. The Home Secretary, under the system in operation at the time of sentence, set the minimum term to be served at 30 years. In 2009 the Court of Appeal reduced the minimum term to 28 years, to reflect what the Court found to be exceptional progress made by the Respondent while in prison. That tariff expired on 21 September 2015. He received lengthy concurrent determinate sentences for two offences of rape, two offences of indecent assault and one offence of perverting the course of justice. Those determinate sentences have now come to an end.[6]The offences were of the utmost seriousness, and the circumstances are well known to the public. In 1983, he raped and murdered a girl who was a stranger to him. He committed an identical set of offences in mid-June 1986. Each victim was walking on her own in areas where there were unlikely to be other people.[7]Each of the girls was 15 when the Respondent killed her. The second murder was particularly violent. Each girl was strangled to death, either as part of a sadistic attack, as the prosecution alleged and the sentencing judge found, or, as the Respondent claimed at court, to avoid any possibility of identification. The convictions for rape and indecent assault were similar extremely serious offences, committed on separate occasions.[8]When the police began to ask men living in the area of the offences to provide voluntary DNA samples (then a very new forensic technology), the Respondent persuaded a work colleague to provide a sample, pretending to be him. This led to the conviction for perverting the course of justice. It was a relatively sophisticated deception, involving falsifying a passport.[9]These crimes devastated the lives of relatives and friends of the girls who died. The oral hearing panel heard moving victim personal statements. I have read the statements that appear in the dossier.[10]The Respondent had four previous convictions for indecent exposure. He accepts that he had indecently exposed himself on countless other occasions, before moving on to offences of rape and murder.[11]In August 2016, following a recommendation by the Parole Board which the Applicant accepted, the Respondent was transferred to open conditions.[12]On 1 September 2021 the Respondent was released on licence by direction of the Parole Board following an oral hearing. On 19 November 2021 he was recalled.[13]There were issues for the panel over the recall. The Respondent disputed that his recall was justified on the facts. The High Court case of Calder ( R ( Calder v Secretary of State for Justice [2015] EWCA Civ 1050 ) imposes on the Parole Board the power and the duty to consider whether a decision to recall is justified. The reason for this is that the Board's power to consider recall gives the prisoner a remedy for any alleged wrongful recall, which must be considered before permission for judicial review is granted.[14]The panel in the instant case complied with its duty to consider the recall decision. 14 pages of the Decision Letter (which totals 34 pages) are specifically devoted to this issue.[15]The question whether the recall is justified may be relevant to, but is not the same as, the question whether the prisoner passes the statutory test for release (discussed below). It is the rationality of the decision as to release that I am called upon to consider.[16]The panel decided that " in the light of all the evidence [it] had heard [it] did not consider that recall was justified ." It is neither necessary nor desirable for me to revisit this decision. Both the balance of the Decision Letter itself and the Application for Reconsideration rightly focus on the facts found by the panel, many of which were relevant to the recall decision, rather than the recall decision itself.[17]An unusual feature of this case is that one of the grounds advanced for the recall was that the Respondent had breached a licence condition (condition 14) by not complying with instructions given to him during a polygraph session by the person conducting the polygraph. During the current parole process it was realised that the licence condition relating to polygraph examination was unlawfully imposed – it was not a licence condition available on release on life licence, and the determinate sentences had all come to an end. However, the facts behind the suggestion of non- compliance were relevant to the question of risk, and were considered by the panel accordingly.[18]A number of factual matters that were raised at the time of the decision to recall were investigated during the parole process, and turned out not to be true or not to be as concerning as may have been thought at first.(i) The Respondent purchased a litter picker. This obviously caused concern that he might be setting up an excuse for being in the kind of places where he had previously offended. He said he had done litter picking in custody. Prison records showed (as I understand it) that he had never formally worked as a litter picker. However, in due course a chaplain at a prison where the Respondent had spent part of his sentence told the prison-based psychologist that she and the Respondent would sometimes collect litter informally.(ii) Linked to the above in the minds of those deciding on recall was the fact that the Respondent had a high vis jacket. The concern was that a combination of such a jacket and a litter picking device would provide an excuse for being in an isolated place and perhaps having conversations with lone females. In fact the Applicant accepted that there was nothing necessarily sinister in someone riding a bicycle in November wearing a high vis waterproof jacket.(iii) The Respondent underwent his first polygraph test on 15 October 2021. The Community Offender Manager (COM) understood that the examiner told her afterwards that the Respondent had said he had lied to his COM. This turned out to be a mistake: what the examiner had intended to convey was that " some responses had been shown during the data collection phase of the test which may have indicated that [the Respondent] had potentially withheld information from [the COM] during communications with him ", and this needed to be further explored during a future test.(iv) As already mentioned, the polygraph condition was in any event unlawful.[19]A further issue arose from this polygraph test. At some stage during it the Respondent told the examiner that, during a break in the procedure, he had spoken to an unknown female in the vicinity of the Probation Office. As a result of this he was given a warning letter. There is a transcript of the relevant part of the conversation at p950 of the dossier: Question (Q): Spoken to any lone females other than ones that you've sort of told me about already? Answer (A): Yeah, I've just talked to a woman in the car park. Q: Ok. A: [Laughs] She was standing looking at the [boats?] and I said if you walk down towards the car park you know you can get there. She said ooh no I'm just watching. Isn't it fantastic? Look how many containers they have on them ships and Ahh. Yeah. I mean that's...but that... To me, that's just... Q: It's just about ships, containers, and ... A: It's nothing is it? It's, it's just a passing conv - it's a passing word with somebody that was standing there. Q: Who initiated that, you or her? A: Well, she was, she was by the car park, looking in the car park like that. And I said you know if you walk down that road, you get down to the end. Q: Ok A: And - Cos you get lots of visitors on ships, don't you? And I said it as I walked by and she kind of said "oh, just looking at the ship", and that was it. Ahh. You know. Ahh. Am I going to see her again, do I know who she is? Nah. Not at all. Q: You didn't exchange numbers or contact details? A: No, it was purely - ahh - part of, part of me being me, trying to be helpful and thinking she didn't know that she could walk down there, she might get a walk down there. There was a couple of blokes standing just ten feet away from her. Q: Any other company of any other lone female or was that [inaudible]? A: Nah[20]The COM reported that on 5 November 2021 the Respondent was aggressive and angry and shouted at her. This evidence was supported by the manager of the hostel and accepted by the panel.[21]At a second polygraph test on 15 November 2021 the result was 'no opinion'. The examiner suspected that the Respondent had deliberately slowed down his breathing to affect the result of the test, at a point where the questions related to masturbation to violent sexual fantasies.[22]It is apparent that the task of the panel considering the Respondent's release was a particularly complex and challenging one. It cannot have been assisted by the requirement to consider whether the recall was justified, in addition to the substantive issue of re-release. Request for Reconsideration[23]The application for reconsideration is dated 5 July 2023.[24]The grounds for seeking a reconsideration are as follows:(1) The reasons given by the panel for preferring the evidence of the Forensic Psychologist to that of the COM are irrational.(2) It was irrational for the panel to conclude that 'warning signs', or signs of increasing risk exhibited by the Respondent, were not evidence of an increase in risk. This conclusion was either Wednesbury unreasonable (a conclusion that no reasonable panel properly directing itself on the evidence could come to) or gave manifestly inadequate weight to relevant considerations. The panel did not give adequate reasons for this decision.(3) The panel was irrational in its approach to the evidence of the Respondent approaching and speaking to a female stranger on 14 October 2021.(4) There are a number of additional factual errors in the panel's decision, which are individually of relatively narrow significance, but form additional and striking instances of a decision which across a number of areas is not rationally based on the evidence heard by and submissions made to the panel.[25]Each of these grounds is further particularised, and I will discuss them below. Current parole review[26]The Applicant referred the Respondent's case to the Parole Board for consideration of release or a recommendation for open conditions. This was the first review after recall. There were hearings on 19 and 20 April 2023. The case concluded on 15 May 2023. A Member of Parliament and 4 victims observed the hearing remotely. They were excluded from those parts of the evidence and discussion about which the Respondent had a reasonable expectation of privacy.[27]The panel consisted of two judicial members and a psychologist member of the Parole Board. The panel considered a dossier containing 1090 pages, to which further pages were added at and after the hearing, as set out in the Decision Letter. The panel heard evidence from the COM, the Prison Offender Manager (POM), a prison-based psychologist, the manager of the Approved Premises (AP) where the Respondent had lived on licence, the polygraph examiner, and the Respondent. Both parties were represented by counsel, who asked questions of the witnesses and made written submissions. The panel heard two victim statements read and considered another. The Relevant Law[28]The panel correctly sets out in its Decision Letter the test for release and the issues to be addressed in making a recommendation to the Secretary of State for a progressive move to open conditions.[29]The Parole Board will direct release if it is no longer necessary for the protection of the public that the prisoner should be confined.[30]The case of Johnson [2022] EWHC 1282 (Admin) does not change the test, but adds the following gloss:
"The statutory test to be applied by the Board when considering whether a prisoner should be released does not entail a balancing exercise where the risk to the public is weighed against the benefits of release to the prisoner. The exclusive question for the Board when applying the test for release in any context is whether the prisoner's release would cause a more than minimal risk of serious harm to the public."
Parole Board Rules 2019 (as amended)[31]Under Rule 28(1) of the Parole Board Rules 2019 (as amended) the only types of decisions which are eligible for reconsideration are those concerning whether the prisoner is or is not suitable for release on licence.[32]Rule 28(2) of the Parole Board Rules provides the sentence types which are eligible for reconsideration. These include indeterminate sentences (Rule 28(2)(a)). Irrationality[33]In R (DSD and others) v the Parole Board [2018] EWHC 694 (Admin) , the Divisional Court set out the test for irrationality to be applied in judicial reviews of Parole Board decisions. It said at para. 116, "the issue is whether the release decision was so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. "[34]This test was set out by Lord Diplock in CCSU v Minister for the Civil Service [1985] AC 374 . The Divisional Court in DSD went on to indicate that in deciding whether a decision of the Parole Board was irrational, due deference had to be given to the expertise of the Parole Board in making decisions relating to parole. The Board, when considering whether or not to direct a reconsideration, will adopt the same high standard for establishing 'irrationality'. The fact that Rule 28 contains the same adjective as is used in judicial review shows that the same test is to be applied.[35]The application of this test has been confirmed in previous decisions on applications for reconsideration under rule 28: Preston [2019] PBRA 1 and others.[36]In R (Wells) v Parole Board [2019] EWHC 2710 Saini J. articulated a modern approach to the issue of irrationality:
"A more nuanced approach in modern public law is to test the decision-maker's ultimate conclusion against the evidence before it and to ask whether the conclusion can (with due deference and with respect to the panel's expertise) be safely justified on the basis of that evidence, particularly in a context where anxious scrutiny needs to be applied. ... [T]his approach is simply another way of applying Lord Greene MR's famous dictum in Wednesbury ... but it is preferable in my view to put the test in more practical and structured terms on the following lines: does the conclusion follow from the evidence or is there an unexplained evidential gap or leap in reasoning which fails to justify the conclusion."
[37]It is possible to argue that mistakes in findings of fact made by a decision maker result in the final decision being irrational but the mistake of fact must be fundamental. The case of E v Secretary of State for the Home Department [2004] QB 1044 sets out the preconditions for such a conclusion:
" there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter; the fact or evidence must have been "established", in the sense that it was uncontentious and objectively verifiable; the appellant (or his advisors) must not have been responsible for the mistake; and the mistake must have played a material (though not necessarily decisive) part in the tribunal's reasoning."
See also R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] AC 295 , which said that in order to establish that there was a demonstrable mistake of fact in the decision of the panel, an Applicant will have to provide " objectively verifiable evidence " of what is asserted to be the true picture. The reply on behalf of the Respondent[38]The Response supports the panel's reasoning, arguing that I, as the Reconsideration Assessment Panel, should not "cherry-pick" from the decision but read it as a single and coherent document. The Response stresses the panel's experience, its active case management, the structure of the panel's approach and the concessions the Applicant made before the oral hearing. It suggests that the approach suggested in the Application is entirely artificial.[39]The Response points out that, apart from the Respondent himself, the principal witnesses were the AP manager, the POM, the COM and the psychologist. Each of the professional witnesses gave evidence relevant to the risk the Respondent posed on licence and whether the risk was manageable in the community. The AP manager said that at the time of recall any risk presented by the Respondent was manageable. Both the POM and the psychologist, dealing with current risk, recommended release. The COM said recall was justified and that the Respondent did not meet the test for release.[40]The Response then discusses the specific Grounds. I will set these arguments out below. The Arguments[41]I will set out the arguments advanced on both sides with regard to the particulars given on each Ground. I have used this font for the Applicant's arguments, and this font for those of the Respondent. I hope this assists in following the debate.[42]Ground 1: The reasons given to preferring the evidence of risk given by the forensic psychologist to the evidence of the COM are irrational .(1) The panel stated that risk assessment is the speciality of the prison psychologist. The point is made that evidence-based risk assessment is also the speciality of the COM. It is suggested that it is wrong in principle and irrational to approach the evidence as the panel did. The COM, unlike the psychologist, has experience of dealing with offenders outside custody. It is the COM who has the ultimate responsibility for managing risk. The proper and rational approach would have been to take as a starting point the approach that the views of the COM as to risk are of at least equal status in principle to those of the prison-based psychologist.(2) The panel stated that the psychologist has used a combination of static and dynamic risk assessments to reach his conclusions. The point is made that the COM also used a combination of static and dynamic risk assessments, which are set out in the OASys. The reason advanced affords no rational basis for preferring the evidence of the psychologist to that of the COM.(3) The panel referred to the psychologist's knowledge of the Respondent. The Applicant points out that the psychologist, who only met him for the purposes of his report, inevitably had far less contact with (and therefore knowledge of) the Respondent than had the COM.(4) The panel stated that the psychologist was able to have a more objective view of what happened during the Respondent's time in the community than the COM, who was right in the middle of what was happening. The Applicant suggests that it is clearly irrational to place greater weight on the evidence of someone who did not witness the conduct in issue than on the evidence of a witness who did.(5) If the panel is suggesting that the COM was at odds with the Respondent, thereby losing her objectivity, it is suggested that the evidence shows that the Respondent was at odds with the COM, but there is nothing to show that she was at odds with him, nor that she had lost her perspective. She recognised that the Respondent was taking out on her his frustrations at the decisions taken by others about his licence conditions. The Respondent shouted at her on one occasion, not she at him. The panel specifically disavowed any wish to appear critical of the COM, and did not blame her for not being as available to chat as the Respondent would have wished.(6) The COM considered whether the Respondent's behaviour towards her demonstrated a hostile attitude towards women in authority. Even if she did hold that view, it does not demonstrate a lack of objectivity.(7) The COM's report was based on all the grounds for recall being made out, while the panel found that several 'facts' that she accepted were not correct. It is argued that the COM's oral evidence took all these matters into account.(8) The psychologist's report was also based on at least one misunderstanding: that a condition for polygraph testing could be imposed on release.(9) The panel said that it would be difficult for the COM to revise her overall recommendation, which was based on incorrect information. There was no rational basis for the panel to doubt that the COM was giving her honest opinion. If the suggestion is that there is a psychological difficulty that may deter a witness from changing an opinion he or she has expressed, then the psychologist too had to consider the difference a factual change, the unavailability of polygraph testing, made to his recommendation.(10) The question whether the panel preferred the view of the COM or the view of the psychologist was fundamental to its decision, and the irrational reasons for preferring the latter to the former vitiate its decision. Response (1) The panel was entitled to assess the evidence of the witnesses. The panel considered the POM to be " convincing and insightful ". The panel described the psychologist as " an impressive witness ... realistic ". (2) The psychologist is qualified to assess risk, and had been specifically requested to do so, in order to provide a full assessment of risk, independent of anyone who had had day-to-day contact with the Respondent. His view could be more objective. The panel was entitled to prefer his opinion, supported by that of the POM. (3) The COM's report was produced on the basis of all grounds for recall being made out. The panel found only two of these grounds to be made out, his behaviour towards his COM on 5 November 2021 and the suspicion of the use of countermeasures in the second polygraph test. The COM's views were therefore not based on the facts as the panel found them to be. (4) It would have been difficult for the COM to revise her overall recommendation. Bearing in mind that the panel recognised that the decision to recall was not the COM's, nor was she consulted before it was made, but came from people senior to her, the panel was entitled to regard her assessment as of less weight than that of the psychologist.[43]Ground 2: The panel's conclusion that the 'warning signs' or signs of increasing risk exhibited by the Respondent were not evidence of an increase in risk is irrational .(1) In 2005 a psychologist described the Respondent's warning signs of an increased risk of offending as including the expression of attitudes indicating disrespect or hostility towards women; attempts to push boundaries; expressing entitlement attitudes; making demands and becoming argumentative; mapping behaviour/aimless walking. She said he had a propensity for hiding his sexual interests from professionals, and advised that there should be monitoring of grievance-thinking.(2) The Applicant submitted to the panel that these warning signs were present while the Respondent was on licence, and gave specific examples. The Applicant submits now that the panel did not engage in detail with these submissions or the examples. Response (1) The Applicant fails to recognise that the evidence of the psychologist supported the view of the panel, that the warning signs exhibited by the Respondent on licence were not evidence of an increase in risk. The psychologist's evidence was that during the Respondent's period on licence there were no clear indicators of an increased risk of sexual offending, nor were there such indicators since his recall. He accepted there was some grievance thinking, and, to a degree, rumination in the Respondent's relationship with his COM. (2) The panel was entitled to state that some of the factors were " insufficiently evidenced " and " overstate the problem ". The application does not recognise any position that contrasts with that of the COM, nor does it recognise that the Respondent's behaviour on licence was in general good.[44]Ground 3: The panel was irrational in its approach to the evidence of the Respondent approaching and speaking to a female stranger on 14 October 2021 . The panel's approach was either Wednesbury unreasonable or gave inadequate weight to relevant considerations.(1) It was irrational to find that this was no more than marginal breach of the condition to be of good behaviour.(2) It was irrational to discount it as making no significant contribution to risk.(3) It was logically inconsistent for the panel to decide both that the breach of the condition to be of good behaviour was marginal and to amend the equivalent condition to make it more applicable to similar behaviour: condition 22 - He shall not seek to approach, or remain in the company of, any lone female who is not known to him , as against the original condition 24 - He shall not remain in the company of any lone female who is not known to him .(4) The behaviour under discussion would have been a clear breach of the panel's new licence condition, which the panel considers necessary and proportionate for the protection of the public.(5) The panel misinterpreted the Applicant's submissions about this behaviour. The Applicant suggested, and suggests, that the real concern is that he approached and engaged [with] a female stranger with no justification to do so. The panel approached the issue on the basis that it was not evidence of approaching young females or frequenting areas where they might go.(6) On any rational view, this incident was evidence of an increased risk to the public. It was evidence of pushing boundaries at the least. At its lowest it is evidence of a disregard and disrespect for the concerns as to risk he presents. The panel failed to engage with these issues at all. Response (1) The only direct evidence as to this was what the Respondent himself said. The most it amounts to is that he deliberately approached and politely spoke to an adult female in an open public space in the vicinity of other people and directed her to where she could get a better view. (2) The panel concluded that he was not putting himself at risk of identification by doing what he did. The psychologist concluded that the incident itself did not make a significant contribution to an increase in risk. The Respondent's legal representative argued this point fully in their submissions at p1097 of the dossier. (3) A finding that this was no more than a marginal breach of a condition to be of good behaviour is not irrational. (4) The panel properly considered whether speaking to a woman outside the probation office was a breach of the licence condition not to approach young females or frequent places they are likely to go. (5) Changing the wording of the relevant condition does not make the panel's conclusion on this irrational.[45]Ground 4: The Applicant notes other factual errors in the Decision Letter, submitting that they are individually of narrow significance, but are striking instances of a decision which across a number of areas is not rationally based.(1) The panel accepted that the Respondent declared the litter picker when he took it back to his hostel. The Applicant says there is no evidence of that, even from the Respondent himself, though concedes that it would have been obvious.(2) The panel stated incorrectly that the MAPPA notes showed that the smallest failure to obey licence conditions would result in an immediate recall. The Applicant disputes that the notes show that, but in any event points out that the Respondent was not recalled, but given warning letters, on two occasions when he was believed to have breached licence conditions.(3) Contrary to what is said in the Decision Letter, the Applicant did submit that the Respondent engaged in deliberate countermeasures when taking the second polygraph test on 15 November 2021, by breathing slowly during the second and third tests but not the practice test. Response (1) The Respondent's representatives believe he did say in evidence that he declared the litter picker after it had been purchased. In any event, it was obvious on his return to the AP and the COM's notes show that it was discussed with her before it was used. (2) The official result of the second polygraph test was " no opinion ". The result could support no more than a suspicion that countermeasures had been taken, as the panel concluded. Discussion[46]The panel had the advantage of an extensive dossier of reports and other material. They had the advantage, too, of seeing and hearing the Respondent as well as the witnesses. Both parties were legally represented throughout. Where there is a conflict of opinion, it was plainly a matter for the panel to determine which opinion they preferred, provided the reasons given are soundly based on evidence, as well as rational and reasonable or at least not outrageous in the sense expressed above.[47]I remind myself of what the panel that directed release said about risk factors (Dossier p26):
"These are said to include: sexual preoccupation; adversarial sexual attitudes; use of violence and excessive force; wanting to have sex with virgins and young females; using sex to exert power and control over women; enjoyment in risk taking; problems with relationships, lifestyle and associates; feelings of inadequacy; poor problem solving and temper control; superior attitudes to others; revenge and grievance thinking particularly towards women; and emotional loneliness. The panel agrees with these factors. Reports suggest that [the Respondent's] motivation included the end goal of sexual gratification and the buzz that [he] achieved by sexually assaulting teenagers, likely to be virgins, sexually inexperienced and more easily shockable. [The Respondent] ha[s] said that [he] had fantasised about raping [his] exposure victims for some time prior to committing [his] first contact sexual offence. [The Respondent] described the murders as pent-up rage which exploded, underpinned by your feelings of inadequacy and a desire to gain revenge on women whom [he] perceived to have controlled and dominated [him]. "
[48]These risk factors were amply demonstrated in the offending. From the point of view of public protection from an offender, particularly one with this offending history, it is of crucial importance that his behaviour on licence is assessed with the offending behaviour itself, and the risk factors that led to it, at the forefront of one's mind.[49]I note also that at the hearing that resulted in a release direction, the Secretary of State did not oppose release. Each of the witnesses supported release, but each commented on the importance to the risk management plan of a polygraph testing condition.[50]It should be born in mind that throughout his many years of sexual offending, culminating in the index offences, the Respondent was leading what appeared on the surface to be a normal, pro-social, married life. He was unquestionably more than capable of concealing his activities, over and above his flagrant deception that resulted in the conviction for perverting the course of justice.[51]Good conduct in custody, whether before release on licence, or after recall, may have little relevance to the decision a panel of the Parole Board has to take. Opportunities for the offending to which the Respondent was prone are minimal to non-existent in closed conditions. However, it is apparent from the original release Decision Letter at p28 that, for example, the Respondent was, even in custody in 2018, displaying " superior attitudes to others ".[52]I remind myself that it is not my function in the course of the Reconsideration process to substitute my judgement of the evidence for that of the panel who saw the witnesses, whether by way of agreement or disagreement. I must apply the test for irrationality set out above, and the bar is manifestly set high.[53]Overall, it seems to me that the panel was distracted by its obligation under Calder to consider whether the recall was justified. The panel has, at some crucial points, focused on whether a particular act of the Respondent's was a breach of his licence conditions, when the true focus should have been on whether it was indicative of an increase in risk. This applies particularly to Grounds 2 and 3.[54]So far as Ground 1 is concerned, whether the panel was entitled to prefer the opinion of the psychologist (and the POM) to that of the COM, I note the real and proper concerns the panel had as to the COM's evidence, based at least in part (and this is no criticism of the COM) on the fact that important decisions in this case, including the recall decision, were taken, not by her, but by people above her head.[55]However, I also take into account the fact that the psychologist's direct knowledge of the Respondent, and that of the POM, was limited to seeing and speaking to him in prison. It was, as the Applicant points out, only the COM who had direct experience of his behaviour in the community, and was in a position to make an assessment of risk for the panel. The AP manager, whose evidence was no doubt important and relevant, could not and did not give an opinion as to risk, though she could and did properly comment on the Respondent's manageability.[56]I am, as I have said, concerned that the panel's assessment of the significance of the warning signs was detached from the context of the offending and the continuing assessment of risk factors. This involves Ground 2, but I include Ground 3, the conversation in the car park, and the suspicion of manipulation of the second polygraph test in my consideration of warning signs.[57]As to the car park conversation, if that is seen in the light of the pattern of offending, rather than purely or principally as an issue about breach of a licence condition (whether the specific condition or the general one to be of good behaviour), in my judgement it takes on a more serious aspect than that attributed to it by the panel. Anyone knowing the facts of this case would feel concern about the Respondent approaching a woman and striking up unnecessary conversation with her. It was not appropriate to focus, as the panel did, on the risk to himself of being identified that was created by this conversation. In so doing, in my judgement the panel failed to give proper weight to this evidence.[58]In my judgement it is relevant that the Respondent mentioned this conversation to the polygraph examiner. It is a reasonable inference that he knew that he would be asked questions during the test about his contacts with lone females. Of course what he said could be interpreted as commendable frankness; it could also be seen as an attempt to pre-empt any adverse conclusions that might be drawn by the examiner.[59]I cannot, in the circumstances, accept that the panel's conclusion, that the Respondent did not think he had done anything wrong, was formed after consideration of all relevant factors. It seems to me that the car park conversation was capable of being evidence, at the least, of boundary-pushing behaviour. The fact of his telling the polygraph examiner about it may properly be considered evidence of that. I find the way he described this (see Paragraph 19 above, " it was purely ... part of me being me, trying to be helpful "), to be at least capable of being indicative of further boundary-pushing. It carries the implication that he would do the same thing again. The panel, focusing on the question of breach of licence conditions and risk of identification, did not adequately deal with this possibility.[60]I am also concerned that the panel did not give full consideration to the importance of polygraph testing in this case. The panel that directed release originally heard evidence that the psychologist who then supported release regarded polygraph testing as essential, and would have more difficulty supporting release if polygraph testing were not in place: dossier p33.[61]The psychologist who gave evidence to the current panel also regarded polygraph testing as important: see dossier p733. When it became apparent that polygraph testing was not available, the psychologist said he did not consider the Respondent's risk management to be contingent on access to polygraph testing: dossier p897. I cannot find in the Decision Letter sufficient discussion of this aspect of the case. The panel did not consider the possibility that the Respondent only admitted the car park conversation at all because he was about to face a polygraph test. If it had decided that that was the case, the panel would have focused more on whether the non-availability of a polygraph testing condition was a major weakness in the Risk Management Plan for release.[62]In my judgement, the panel should have considered that in more detail than it did in any event, and the failure to do so in the Decision Letter was irrational. The panel's approach to the question of polygraph testing is set out at Paragraph 5.21 of the Decision Letter. The panel quotes from the psychologist's further report dated 13 April 2023:
" Polygraph testing is in place to support effective management of people convicted of sexual offences whilst on licence and to prompt enquiry in response to disclosures made. While it is therefore a useful tool for prompting or encouraging honest engagement, addressing problems in the supervisory relationship and [the Respondent's] approach to it would be expected to achieve this to a reasonable degree. He was also released on licence with a high number of restrictions, which are designed in part to identify changes in risk."
[63]In his evidence the psychologist said that he considered the risk management plan to be robust enough to manage the Respondent without a polygraph testing condition. He was of the view that warning signs would be clear if risk were escalating, but that these needed to be clearly understood and that several should be present before the Respondent is recalled in future.[64]The panel accepted the psychologist's evidence and did not think that the fact that a condition of polygraph testing cannot lawfully be included in the licence conditions meant that he did not meet the test for release. This approach, in my judgement, fails to give due weight to the real possibility that were it not for the polygraph testing no-one would know about the Respondent's conversation in the car park. This illustrates the very real possibility, if not probability, of warning signs being missed in the absence of polygraph testing. The conclusion, on the Decision Letter as it stands, that the absence of the availability of polygraph testing was not a significant flaw in the protection to the public offered by the risk management plan I find to be unjustifiable on the evidence.[65]In this context I also consider the Applicant's complaint about the approach taken by the panel to the suspicion of the use of a countermeasure against the polygraph to be valid. The evidence was that the Respondent described the polygraph as a "stress test". The undisputed evidence is that slow breathing is a known countermeasure to the test. The panel found that the evidence was not enough to take this aspect of the case beyond suspicion. The Respondent himself said that he was breathing slowly to reduce his stress. If considered in context, with the offending behaviour, the assessments of risk, the possibility of boundary-pushing, this becomes a matter to which the panel should have given more weight than it did.[66]Taking all the other matters into account (including the aggressive behaviour towards his COM, a complaint found by the panel to be soundly based), and taking, as I am asked on behalf of the Respondent to take, a holistically-based approach to the case, I am satisfied that the foregoing matters amount to irrationality.[67]In so doing, I apply (and repeat) the words of Saini J. in R (Wells) v Parole Board [2019] EWHC 2710 :
"A more nuanced approach in modern public law is to test the decision-maker's ultimate conclusion against the evidence before it and to ask whether the conclusion can (with due deference and with respect to the panel's expertise) be safely justified on the basis of that evidence, particularly in a context where anxious scrutiny needs to be applied. ... [T]his approach is simply another way of applying Lord Greene MR's famous dictum in Wednesbury ... but it is preferable in my view to put the test in more practical and structured terms on the following lines: does the conclusion follow from the evidence or is there an unexplained evidential gap or leap in reasoning which fails to justify the conclusion."
[68]I find that the panel failed to give proper weight to evidence which, if properly assessed, amounted to warning signs that the Respondent's behaviour on licence was deteriorating to the point where his risk was increasing. Nor did the panel properly assess the weight to be given to the absence of the availability of polygraph testing. The panel's conclusion did not, therefore, follow from a proper consideration of the evidence.[69]As to Ground 1, I do not think it is necessary or desirable for me to make a finding, having regard to what I have said about Grounds 2 and 3. A panel's preference for the opinion of one professional witness over another is a part of the case only, and not determinative. Cases ought to be, and are, decided on a basis of fact assisted by opinions, not the other way round.[70]I do not need to consider Ground 4, and do not do so, save to deprecate the use of a shotgun approach to criticising the panel's decision, which detracts from an otherwise tightly-focused pleading. Decision[71]Accordingly, I do consider, applying the test as defined in case law, the decision to release the Respondent to be irrational. I do so solely for the reasons set out above. The application for reconsideration is therefore granted and the case should be reviewed by a fresh panel by way of an oral hearing. HH Patrick Thomas KC 26 July 2023