Neutral Citation Number: [2011] EWHC 128 (Admin)
Case No: CO/8820/2010 
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT (MANCHESTER)

Manchester Civil Justice Centre,
1 Bridge Street West,
Manchester, M60 9DJ

Date: 1 February 2011
BEFORE:
HIS HONOUR JUDGE STEPHEN DAVIES
SITTING AS A JUDGE OF THE HIGH COURT
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Between :

	R (on the application of IAN D’CUNHA)	Claimant	
	
- and -		
	
THE PAROLE BOARD	
Defendant	

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Ms Farrhat Arshad (instructed by Scott-Moncrieff, Harbour & Sinclair, Solicitors London NW5) for the Claimant

Mr Sam Karim (instructed by Treasury Solicitors Department, London WC2) for the Defendant

Hearing date: 17 December 2010
Date judgment in draft: 7 January 2011

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	JUDGMENT

His Honour Judge Stephen Davies.

Introduction

1.	In this case the Claimant seeks judicial review of a decision of a Panel of the Parole Board ('the Panel'), contained in a letter dated 18 May 2010, in which it: (a) declined to direct the Claimant's release from custody; (b) declined to make a recommendation to the Secretary of State for Justice ('the Secretary of State') that he should be transferred to open conditions.

2.	Permission was granted by HHJ Pelling QC on 10 September 2010, limited to 4 of the 6 grounds contained in the Judicial Review Claim Form.

3.	The hearing took place on 17 December 2010.  The Claimant was represented by Ms Arshad of counsel and the Defendant by Mr Karim of counsel.  At the conclusion of the appeal I gave counsel the opportunity to lodge supplementary written submissions on two particular points which had arisen during the course of the hearing, and they both took the opportunity to do so.

4.	The facts can be summarised as follows:

5.	The Claimant is a man who was born in 1956 and is thus now 54 years of age.  It appears that his first conviction for violence was in 1972, when he was convicted of offences including one of assault occasioning actual bodily harm.  He was subsequently convicted on a number of further occasions up to 1992 for offences including offences involving violence - although none as serious as the offence, committed in 2006, for which he is currently in custody ('the index offence') - and public order offences.  During this period he received a number of custodial sentences.  He married in his early 20's and had 2 children, but separated shortly after his second child was born.  He became responsible for the care of his eldest son and appears to have had a reasonable employment record.  In the early 1990's he formed a new relationship, and had 2 further children in 2000 and 2003.  By 2006 he was a reasonably successful decorating contractor living with his partner and their 2 children.  The onset of the relationship appears to have coincided with a cessation in his offending behaviour, although in 2003 he was bound over for a public order offence and in 2006 he received a fixed penalty notice for a further public order offence.  

6.	On 2 June 2006 the Claimant committed the index offence of wounding with intention to cause grievous bodily harm, for which he was convicted after a trial and sentenced on 26 February 2007 to imprisonment for public protection ('IPP') with a minimum period of 2½ years.  The victim, who had worked for the Claimant, had driven to the Claimant's house to demand money which he believed was owing to him but, seeing the Claimant outside with his son, had driven past.  The Claimant got into his car and chased him for some distance, eventually forcing him to stop.  Both men got out of their cars and there was a struggle in the course of which the Claimant struck the victim twice around the head with the hooked end of a crowbar.   

7.	The Claimant was imprisoned first in HMP Bedford, from where he was transferred to HMP Wellingborough in February 2008.  In May 2008 he successfully completed a Victim Awareness course.  In May 2008 he was assessed for the Controlling Anger and Learning to Manage it ('CALM') course but deemed unsuitable.  The contemporaneous note produced by the trainee forensic psychologist who interviewed him reveals that the reason he was deemed unsuitable was that the main precursor to his offending was assessed as being poor decision making, rather than poor emotional or anger control.  The psychologist recommended that the main focus of the Claimant's offending behaviour work should be cognitive skills.  Accordingly, the Claimant was accepted on an Enhanced Thinking Skills (‘ETS’) course, which he successfully completed in July 2008.  In early 2010 he successfully completed a Cognitive Skills Booster accredited programme.  He has also completed a number of educational and vocational courses.   More generally, his behaviour whilst in custody has throughout been exemplary, with no adjudications or positive drug tests.  He has been on an enhanced wing regime, working as an orderly and as a listener and also working with special needs children for gym sessions.  Whilst in prison he was subjected to an unprovoked attack, and did not respond with any aggression.  As the Panel accepted in its decision letter, all of this demonstrated his great remorse and wish to avoid further offending, and it was impressed with the sincerity of his desire to avoid committing another aggressive or violent offence.    

8.	On 15 February 2009 the Secretary of State referred his case to the Parole Board to consider whether or not it would be appropriate to direct his release and, if not, to advise the Secretary of State whether he should be transferred to open conditions.  The Panel was provided with a dossier comprising 169 pages, together with various other materials.  This included:
a.	A written report dated 14 August 2008 from Dr Peter Pratt, being an independent consultant clinical and forensic psychologist instructed by the Claimant's then solicitors, together with an addendum report dated 4 December 2009.
b.	A sentence planning and review report dated June 2009 from Ms Lansberry, a probation officer and the Claimant's offender supervisor at HMP Wellingborough.
c.	A parole assessment report dated 20 July 2009 from Ms Oliver-Blais, a probation officer and the Claimant's offender manager within the Hertfordshire probation area, together with an OASys assessment completed by Ms Oliver-Blais contemporaneous with that report, and an addendum report dated 23 April 2010.
d.	A sentence planning and review report dated 22 June 2009 by Mr Rushdon, a prison officer, the Claimant's personal officer at HMP Wellingborough.

9.	On 18 February 2010 the Panel met and heard evidence from Mr Rushdon, Ms Lansberry, and Ms Oliver-Blais.  Due to pressure of time it adjourned to the first next available date, being 4 May 2010, when it heard evidence from Dr Pratt, and from the Claimant.  The Claimant was represented at both hearings by Ms Arshad.  There was no representation from the Secretary of State before the Panel, whether written or oral.

10.	The decision letter is a document comprising 9 pages, broken down into 9 individual sections respectively entitled (1) Decision of the Panel; (2) Evidence considered by the Panel; (3) Analysis of Offending; (4) Factors which increase or decrease the risk of re-offending and harm; (5) Evidence of change during sentence; (6) Panel's assessment of risk of re-offending and serious harm; (7) Plans to manage risk; (8) Conclusion: Level of risk and suitability for release / open conditions.  As I have already stated, the Panel declined to direct the Claimant's release from custody or to make a recommendation to the Secretary of State that he should be transferred to open conditions.  It made these decisions in the face of the written and oral support from all of the witnesses from whom it had heard that the Claimant should be released or transferred.

11.	On 10 June 2010 the Claimant's then solicitors wrote to the Parole Board enclosing a copy of an advice from Ms Arshad on the merits of judicial review in respect of the decision, and requesting the appointment of a fresh panel to consider the Claimant's case.  Reference was made to an addendum report from Dr Pratt dated 1 June 2010 commenting on certain parts of the decision letter.  That request was refused by letter dated 15 July 2010.  The instant proceedings were commenced on 18 August 2010; in granting permission HHJ Pelling QC rejected a complaint based on the delay in bringing this claim.  The relief sought was a declaration that the decision was unlawful and should be quashed and an order for a fresh panel to be urgently convened to reconsider.

12.	The grounds of challenge as advanced before me are as follows:
1.	Ground 2: the Panel failed to give any or any adequate reasons for rejecting the evidence of the four witnesses from whom it had heard live evidence, all of whom had recommended release and/or a move to open conditions;
2.	Ground 3: the Panel's view as to the necessity for the Claimant to complete work on loss of control and anger was irrational.
3.	Ground 4: the Panel failed to give adequate weight to the Claimant's completion of accredited offending behaviour courses.
4.	Ground 6: the Panel erred in its approach to consideration of suitability for open conditions in that it failed to carry out a balancing exercise between risk and benefit to the Claimant, contrary to the Secretary of State's directions to do so.

13.	I should begin the substantive part of this judgment by referring to the relevant legal framework in which the Parole Board operates.

The legal framework

14.	The role of the Parole Board in relation to the release of IPP prisoners arises under s.28 Crime (Sentences) Act 1997.  Where the Secretary of State refers the prisoner's case to the Board, and where the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined, then the Board shall direct his release, and in such case the Secretary of State shall be under a duty to release the prisoner on licence.  

15.	As to the role of the Parole Board generally, in R (West) v Parole Board [2005] 1 WLR 350 Lord Bingham at paragraph 26 said:
‘Lastly, it is plain from the statutory provisions already quoted that the resolution of
questions of the type indicated is entrusted, and entrusted solely, to the Parole Board. In exercising this very important function, it is recognised to be an independent and impartial tribunal for purposes of article 6(1) of the European Convention. It is the primary decision-maker, not entitled to defer to the opinion of the Secretary of State or a probation officer: R v Parole Board, Ex p Watson [1996] 1 WLR 906, 916. As the materials already cited make clear, the Parole Board is concerned, and concerned only, with the assessment of risk to the public: it must "balance the hardship and injustice of continuing to imprison a man who is unlikely to cause serious injury to the public against the need to protect the public against a man who is not unlikely to cause such injury": ibid. The sole concern of the Parole Board is with risk, and it has no role at all in the imposition of punishment: R v Sharkey [2000] 1 WLR 160, 162−163, 164.’

16.	It is clear from this passage that the Parole Board is, and must be, free to accept or to reject particular evidence put before them.  That is so even if the evidence is expert evidence: see R (O’Sullivan) v Parole Board [2009] EWHC 2370 (Admin) where Irwin J said at paragraph 18 that:
‘Even on the basis of the panel’s recited version of what they were told by the experts who appeared in front of them, it seems to me that there is no good reason given in the decision as to why the necessary further work could not be done and should not be done in open conditions.  Of course, there was a full basis on which the panel could decline to recommend immediate release, but there had been a consensus before them that transfer, at least to open conditions, was appropriate.  Of course, it is open to any panel to disagree with all of the expert evidence which is placed before them.  Any properly constituted tribunal could do that, particularly one containing a reservoir of expertise and knowledge such as the Parole Board.  But they simply failed to explain in this decision any full or appropriate reasons why transfer to open conditions should not take place.’

17.	As to the role of the court in the context of judicial review of decisions of the Parole Board, in R (Alvey) v Parole Board [2008] EWHC 311 (Admin) Stanley Burnton J (as he then was) said in paragraphs 1.26 and 1.27 that:
‘1.26.  The law relating to judicial review of this kind may be shortly stated.  It is not for this court to substitute its own decision, however strong its view, for that of the Parole Board.  It is for the Parole Board, not for the court, to weigh the various considerations it must take into account in deciding whether or not early release is appropriate.  The weight it gives to relevant considerations is a matter for the Board, as is, in particular, its assessment of risk, that is to say the risk of re‑offending and the risk of harm to the public if an offender is released early, and the extent to which that risk outweighs benefits which otherwise may result from early release, such as a long period of support in the community, and in some cases damage and pressures caused by a custodial environment.  
1.27.  The Panel must give reasons for its decision, but it is not required to address every matter which it considers provided it is clear that it addressed the substance of the issues required to be addressed in a particular case, and that its reasons demonstrate why early release has not been ordered, and are sufficient to demonstrate the lawfulness of the decision.’  
18.	The respective position of the Parole Board and the court was also succinctly summarised by Smith J (as she then was) in R (Gordon) v Parole Board (2000) EWHC 414 (Admin), at paragraph 31, where she said that:
‘I remind myself that I must not in any way interfere with the discretion or judgement of the Parole Board, who, as Turner J. observed in ex parte Hart (unreported 24th May 2000) are ‘uniquely qualified’ to make the decisions it is called upon to make. I must ask myself whether they have carried out their task in accordance with the law, as set out in the statutory directions. I must consider whether the decision falls within the range of decisions which a reasonable panel might make. I must ask whether the reasons for the decision are proper, sufficient and intelligible.’

GROUND 2: NO OR NO ADEQUATE REASONS FOR REJECTING EVIDENCE OF PROFESSIONAL WITNESSES

19.	I begin my consideration of this head of challenge by considering the law as to the nature and extent of the obligation on the Parole Board to give reasons for its decisions.

The obligation to give reasons

20.	In arranging the timetable and procedures for oral hearings the Parole Board follows the Parole Board Rules made by the Secretary of State, in exercise of the powers conferred on him by section 32(5) of the Criminal Justice Act 1991.  Rule 20 of the Parole Board Rules expressly requires the decision to be 'recorded in writing, with reasons'.  This is consistent with the obligations of the Parole Board at common law and by virtue of Article 5(4) of the European Convention on Human Rights.  Further the terms of the written referral by the Secretary of State to the Parole Board in this case said in paragraph 4 that:
‘The Board is asked to give full reasons – which will be disclosed to the prisoner – for any decision or recommendation it makes.’

21.	In R (Oyston) v Parole Board (2000) PLR 45 the Court of Appeal considered the nature and extent of the obligation to give reasons.  Mr Karim referred me to the judgment of Lord Bingham at paragraphs 46 and 47, where he said that:

‘46.	It is accepted that the court may receive additional material to elaborate and expand the reasons given in a decision letter such as this, but the reasons for caution are obvious. The purpose of the letter, where parole is to be refused, is to explain why the prisoner's application has been unsuccessful, a matter of great moment to him. He wants to know the basis of the adverse decision and should be told it in the decision letter. Such letters are not to be construed in a pedantic and nitpicking spirit, and the court should be careful not to seize on occasional omissions and infelicities in such letters as a ground for granting judicial review. The prisoner is however entitled to an intelligible summary of the Board's reasoning, enough to show him that his application has been fairly considered and explain to him why the decision has gone against him. In the present case I do not think that the later affidavit can be taken to dispel the concern to which the terms of the decision letter give rise.

47.	Mr Kovats, representing the Board, has invited the court to give guidance for the assistance of those who consider cases such as this and draft decision letters to prisoners. This is a request to which I would wish to respond, given the important and responsible task which the Board discharge and the undesirability of repeated court challenges to decisions of the Board. But it is difficult to give very specific guidance. Plainly the Board must in each case focus on the question of risk to which their decision is directed. Full account must be taken, as they affect any individual prisoner, of the matters listed in the Secretary of State's directions. It seems to me in general desirable that the Board should identify in broad terms the matters judged by the Board as pointing towards and against a continuing risk of offending and the Board's reasons for striking the balance as it does. Needless to say the letter should summarise the considerations which have in fact led to the final decision. It would be wrong to prescribe any standard form of decision letter and it would be wrong to require elaborate or impeccable standards of draftsmanship.’

22.	Ms Arshad submitted however that I should have regard to the longer section in the judgment of Pill LJ.  There, dealing with the issue in the context of the particular part of the Directions issued by the Secretary of State which was in question in that case, at paragraphs 27-39, he said this:

‘27.	In my judgment the Board has taken too narrow a view of paragraph 2(1)(b) of the direction. Moreover, as Mr Kovats accepts, and rightly accepts in my view, the test is a general one. The test is as to the current level of the risk to the public and it is essential in applying that test that all the circumstances of the particular case are considered. There is nothing in the decision letter to indicate that the evidence of the proposed change in lifestyle was a factor considered by the Board in reaching their decision. Mr Kovats submits that by implication it can be concluded that this factor was taken into account. In my judgment it was a central point which needed to be addressed both directly and specifically.

28. 	Moreover, the respondent was entitled to know that the point had been considered. There is upon the Board a duty to give reasons and it is submitted that, even if the substance of the matter was considered, the reasoning was inadequate. When considering the nature of the duty to give reasons, the classic exposition is that of Megaw J in In re Poyser and Mills' Arbitration [1964] 2 QB 467, 478, subsequently approved in the House of Lords in Westminster City Council v Great Portland Estates Plc [1985] AC 661, 673:

29. 	"Parliament provided that reasons shall be given, and in my view that must be read as
meaning that proper, adequate reasons must be given. The reasons that are set out must be reasons which will not only be intelligible, but which deal with the substantial points that have been raised."

30.	That passage was also cited with approval more recently in Bolton Metropolitan District Council v Secretary of State for the Environment [1995] 3 PLR 37, 43. Lord Lloyd, with whom the other members of the Judicial Committee agreed, stated:

31.	"What the Secretary of State must do is to state his reasons in sufficient detail to enable the reader to know what conclusion he has reached on the principal important controversial issues. To require him to refer to every material consideration, however insignificant, and to deal with every argument, however peripheral, would be to impose an unjustifiable burden."

32. 	I cannot accept Mr Kovats' submission that the reasoning has regard to the circumstances of this particular case. The evidence as to the change of lifestyle was, upon the determination of the central issue, a principal and an important issue. The letter wholly fails to address it.

33. 	A further point has arisen as to whether the Board was entitled to have the court consider a statement submitted, after the decision letter, by Mr Hennessy, a member of the panel. It is not necessary for present purposes to set out in full the contents of that letter, which claimed that parole was refused because of the risk of reoffending and not because the respondent denied the offences. The question arose in R v the Parole Board, ex parte Gittens (unreported, 26.1.94). Ralph Gibson LJ stated at page 28 of the transcript:

34. 	"In my judgment, the reasons which are required by Rule 15 to be recorded in writing and signed by the chairman of the panel, must not only be the reasons for and upon which the decision was made but must also, as required by well established principles of law, be intelligible and deal with the substantial points which have been raised."

35.	(That closely reflects the language of Megaw J in Poyser v Mills.)

36. 	"In the context of a hearing before the DLP, the reasons must explain why the DLP is not satisfied that it is no longer necessary for the prisoner to be confined. It should not, therefore, normally be necessary for any further explanation of the reasons for the decision to be given...."

37. 	The question of an elaboration of reasons was also considered in a different context by Hutchison LJ in R v Westminster City Council, ex parte Ermakov [1996] 2 All ER 302, 315:

38.	"The court can and, in appropriate cases, should admit evidence to elucidate or, exceptionally, correct or add to the reasons; but should.... be very cautious about doing so. I have in mind cases where, for example, an error has been made in transcription or expression, or a word or words inadvertently omitted, or where the language used may be in some way lacking clarity. These examples are not intended to be exhaustive, but rather to reflect my view that the function of such evidence should generally be elucidation not fundamental alteration, confirmation not contradiction."

39.	In my judgment it is important in cases before the Parole Board that reasons which comply with the guidance in the cases to which I have referred should be given. The liberty of the subject is at stake. It is most undesirable if the reasons are not of such clarity that the Board feels impelled to seek to make a further statement to elaborate upon them or to explain them.’

23.	Mr Karim also referred me to paragraph 1.27 of the decision in Alvey, set out above.

24.	I was also referred to the decision of the Court of Appeal in the case of Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377, where there was a discussion of the obligation to give reasons in the context of court decisions.  In that case the court emphasised that it was not possible to make absolute rules as to the requirement to give reasons, because the issues which arise are infinitely various.  They said that the rule was simply that the judge must explain why he has reached his decision, and that would depend on the subject matter.  

The Claimant’s case under Ground 2

25.	Ms Arshad's submission was that the Panel had given no reasons at all for rejecting the evidence of Ms Oliver-Blais or Mr Rushton and inadequate reasons for rejecting the evidence of Ms Lansberry and Dr Pratt.  She submitted that the obligation to give full and proper reasons was particularly significant in this case given that all of these professional witnesses had supported release or transfer to open conditions, and that there were no opposing views expressed by any other witnesses. 

Dr Pratt

26.	It is convenient to deal first with the position in relation to Dr Pratt.  The Panel considered his evidence and views in its decision letter in the following sections.
1)	In section 4 it said that although it agreed with Dr Pratt that 'thinking skills deficits are factors in your offending' it disagreed with him that 'these are your primary risk factor.  The Panel identifies as your primary risk factor your propensity to lose control and act aggressively and violently in a range of circumstances when your sense of self is threatened'.
2)	In section 5, it referred to having had a lengthy discussion both with the Claimant and Dr Pratt about the Claimant's 'previous aggression and the circumstances surrounding the index offence'.  In the following two paragraphs it referred to two respects in which Dr Pratt's views had changed from those previously expressed in the course of the discussion.  In the next paragraph it referred to 'four primary concerns' it had discussed with Dr Pratt in relation to his reports.  It continued, significantly in my judgment, to record the results of the Panel having explored with the Claimant in his evidence his own 'understanding of how you came to commit the index offence', and his 'understanding of any connection between the index offence and your previous aggressive offence-related behaviour', and his responses when asked 'whether you recognise when you are becoming angry'.  The final paragraph in this section concludes as follows:

‘The Panel was concerned that the index offence was a serious escalation in your violence both in terms of the seriousness of your violence and in terms of the duration of your aggression.  It is clear to the Panel that you could have anticipated a serious and violent outcome.  The circumstances of the index offence took some time to develop and there were many opportunities for you to choose a path which would have dissipated the anger which clearly you were experiencing.  However, you were unable to control your emotions and you persisted with a course of behaviour which ultimately led you to assault your victim in circumstances where the outcome could have been even more serious than it was.’

3)	In section 6, the Panel recorded Dr Pratt's 'unequivocal' recommendation for an immediate release, and stated that they had 'considerable difficulty in reconciling … Dr Pratt's assessment of the circumstances of the index offence taking into account your previous offence-related aggression and violence'.  It concluded this section by finding that the Claimant had 'little insight into the mechanism or mechanisms whereby your anger becomes out of control to the extent that you become abusive, aggressive or violent.  The Panel were firmly of the view that you continue to pose an unacceptable risk of further serious violent offending and that you need to complete in-depth work to help you understand your anger and violence before it is safe for you to move to open conditions or to be released'.

27.	Mr Karim submits that what clearly emerges from the decision letter is that the Panel did what the professionals involved had not done, which was to challenge both with Dr Pratt and the Claimant himself the Claimants own understanding of and explanations for his violent offending and, having done so, concluded not only that there was a primary risk factor which the professionals had failed sufficiently or at all to identify, but also that because this risk factor had not properly been addressed a serious unacceptable risk remained which meant that it was not safe for the Claimant to be moved to open conditions or be released.    

28.	I agree with Mr Karim's submissions.  In my judgment it is impossible to argue that the Panel had not given adequate reasons for not accepting the views of Dr Pratt.  It is quite clear from the extracts from the sections to which I have referred that it expressed its concerns about certain aspects of his report, that it also observed that his views in certain respects changed when questioned in detail and, most importantly, that it found his assessment of the circumstances of his offending and the Claimant's primary risk factor as inconsistent with the conclusions it reached having explored matters fully with the Claimant in his evidence.  It is not necessary in my judgment for the Panel to include in the decision letter a specific section or paragraph setting out in detail what his views were and giving detailed reasons for rejecting each of them.  On a fair reading of the decision letter it is quite clear that it rejected his views and why it rejected them, and in my judgment that is all that is required of it and the decision letter cannot be criticised on this ground.

29.	In his post-decision letter addendum report Dr Pratt says that he is unable to identify any difference between the primary risk factor identified by Dr Pratt and that identified by the Panel.  However, with respect to Dr Pratt, there appears to me to be a clear difference between the two, even though I accept that there is obviously an overlap between the two.  That there is a difference is evidenced not least by the fact that NOMS run different courses for anger management and cognitive thinking.  It was not incumbent on the Panel to provide some supplemental decision explaining why they did not agree with Dr Pratt's view as expressed in the post-decision addendum report.

Ms Lansberry

30.	In section 6 the Panel noted that both Ms Lansberry and Ms Oliver-Blais had recommended a progressive move to open conditions in their reports, whereas in their oral evidence they had supported an immediate release.  It then referred to certain aspects of Ms Lansberry's evidence and said that it was concerned that her recommendation was 'based on an inadequate understanding of your motivation and behaviour in the index offence'.  It is clear that it contrasted her initial view, that since the Claimant was 'always calm' there was 'no need' for him to complete a CALM programme, with her subsequent answer under question from the Panel that she considered the trigger factors 'may be when people are disrespectful towards you when you feel you are in charge; when you feel personally under threat; or when you feel you have been treated unfairly'.  Although Ms Arshad submits that this answer is very little if at all different to the primary risk factor as identified by the Panel, that submission ignores in my judgment the process whereby Ms Lansberry came to that view, i.e. it was a view which was inconsistent with her previous evidence and views and only emerged under further questioning by the Panel.

31.	Again, in my judgment, it is clear from the decision letter that the Panel considered Ms Lansberry's views, and its reasons for finding those views unconvincing appear clearly from the section to which I have just referred.  

32.	Furthermore, and importantly, it is an error in my judgment to focus solely on that passage as demonstrating why the Panel disagreed with the views she expressed.  The views expressed by her were substantially the same as those expressed by Dr Pratt; indeed as the Panel observed her views had changed from her report to her oral evidence so as to fall into line with the views expressed by Dr Pratt.  The section in question follows immediately on from section 5, where the Panel had undertaken the detailed review of the evidence of Dr Pratt and the Claimant.  The essential question for the Panel was whether it was prepared to accept the view promulgated by Dr Pratt and supported by Ms Lansberry and Ms Oliver-Blais, which was in substance that the primary risk factor was a deficit in thinking skills, which had been addressed by the courses undertaken by the Claimant and the success proved by his behaviour whilst in custody, or the alternative view, which was that the primary risk factor was lack of emotional and/or anger control, which had not been addressed by the Claimant himself whether by the courses undertaken by him whilst in custody or otherwise, so that notwithstanding the success of the courses he had undertaken and his behaviour whilst in prison, that primary risk factor remained.  It is clear from the decision letter that it preferred the alternative view, and it is also clear from the decision letter why it came to that view.   

33.	As I have already held in relation to the evidence of Dr Pratt, the requirement to give reasons does not require the Panel in a case such as this to go through the exercise of identifying every witness whose views were before it, whether in written and/or oral form, and to state in terms what their view was, in what particular respects the Panel disagreed with it, and on what basis in relation to each area of disagreement.

Ms Oliver-Blais

34.	As already stated, in section 6 the Panel noted that both Ms Lansberry and Ms Oliver-Blais had recommended a progressive move to open conditions in their reports, whereas in their oral evidence they had supported an immediate release.  As Ms Arshad submits, however, it is true that whilst it went on to refer to, and to consider, Ms Lansberry's evidence in more detail, nowhere did it refer further to Ms Oliver-Blais' evidence or views or explain why it did not accept them.  She submits that this must be viewed in the context that it was Ms Oliver-Blais who conducted the OASys assessment and whose report was produced following consideration of that assessment, an interview with the Claimant, a consideration of Ms Lansberry's report and discussion with her, a consideration of Dr Pratt's report, a consideration of the previous OASys and probation records and a home visit to the Claimant's partner where she also met his mother.  She submits that in the OASys assessment Ms Oliver-Blais identified the Claimant as having an element of 'aggressive behaviour and lack of temper control', identified circumstances of conflict or threat or unfair treatment as being risk factors, and recommended attendance at anger management courses available in open conditions or on release, such as the Anger Replacement Training (ART) accredited programme, so that it cannot be said that she did not recognise or address the primary risk factor as found by the Panel.  Her recommendation of attendance on an ART programme on open conditions or on release was also included in he report.  She submits that if the Panel disagreed with this analysis and recommendation, then it was incumbent on it to explain why given that this was a central issue in the case.  

35.	Mr Karim submits firstly that insofar as Ms Oliver-Blais expressed views which were the same or substantially the same as those expressed by Dr Pratt and Ms Lansberry there was no need for the Panel to deal separately with Ms Oliver-Blais, because the Panel gave clear and sufficient reasons why it disagreed with those views.  He submits in relation to her analysis of the risk factor that it was nothing like the detailed assessment which the Panel arrived at.  He submits that in section 6 the Panel clearly explained why it considered that it was necessary for the primary risk factor which they had identified to be addressed before it was safe for the Claimant to be moved to open conditions or be released.  In that respect, it is clear from section 7 that it was alert to the point that if the Claimant was to be moved to open conditions or to be released the Claimant could only undertake the ART programme if he was assessed to be suitable for it.

36.	Again I agree with Mr Karim's submissions.  I consider that the decision letter does adequately explain the reasons why the Panel did not agree with the views expressed by Ms Oliver-Blais.  Again it is true that the Panel did not include a specific section dealing solely with Ms Oliver-Blais' views, setting out what those views were and giving reasons specific to her as to why it did not accept them, but again in my judgment it was not necessary for the Panel to have done so, so long as it was apparent on a fair reading of the decision  letter that it was rejecting those views and why it was doing so.  In particular, it is quite clear why the Panel formed the view that it was not sufficient simply to direct the Claimant’s release or transfer to open conditions in the hope that the Claimant would be assessed as suitable to undertake the ART programme, that he would complete it satisfactorily, and that this would adequately address the primary risk factor.  The decision letter in this case fulfils that requirement, and no more is required in my judgment.

Mr Rushdon

37.	Save for recounting that they heard evidence from him, the Panel did not refer to Mr Rushdon's views or evidence anywhere in the decision letter.  However, it is clear from the report itself that Mr Rushdon, as would be expected, deals only with the Claimant's behaviour whilst in prison.  The report concludes by saying:
'Due to his achievements, his hard work and his behaviour whilst in custody I would consider the risk to the public low should he be released.'

38.	It is clear from the decision letter that the Panel was fully aware of, and accepted, the evidence as to the Claimant's achievements, hard work and behaviour whilst in custody but, having regard to the other matters which it also considered, disagreed with Mr Rushdon's assessment of the risk to the public should the Claimant be released.  It is quite impossible in my judgment for the decision letter to be attacked on the basis that the Panel was obliged to state in terms that it rejected Mr Rushdon's assessment, based as it inevitably was on a limited assessment of the Claimant, because of the other matters which were set out in considerable detail in the decision letter.  

Ground 2 challenge – Conclusion

39.	As well as considering separately the reasons given in relation to the individual professionals, I have also considered whether taken together it could be said that the panel gave inadequate reasons for dissenting from the views of all of the professionals taken together.   For the reasons I have already given, however, I do not consider that this is so, and accordingly I reject the challenge on ground 2.

GROUND 3: THE PANEL'S VIEW AS TO THE NECESSITY FOR THE CLAIMANT TO COMPLETE WORK ON LOSS OF CONTROL AND ANGER WAS IRRATIONAL
   
40.	Although Ms Arshad criticised the decision as a whole as being irrational, the primary focus of her challenge under this ground related to the issue of the CALM programme.  She submitted that it was clear from the decision letter that the Panel considered that successful completion of this course was necessary before the Claimant could demonstrate that he had adequately addressed the primary risk factor which it had identified, yet it was fully aware that this was not open to him because he had already been assessed as unsuitable for inclusion on this programme.  She submitted that this was irrational.  She also submitted that the Panel failed to address the option of addressing this through the ART programme either on release or in open conditions.

41.	Mr Karim submitted firstly that the Panel did not state in its decision letter that it was necessary for the Claimant to undertake the CALM programme before he could be considered for release or for transfer to open conditions, secondly even if that was the practical consequence of their decision that was not irrational since it was not responsible for the decision not to assess him as suitable for the CALM programme and could not abdicate its fundamental responsibility for assessing risk by accepting a decision to which it was not a party and with which it disagreed, and thirdly that it clearly had addressed the alternative option of undertaking the ART programme in open conditions.

42.	It is clear in my judgment from the decision letter that the Panel was very careful not to make any recommendation on the suitability of any particular programme, and the referral itself is explicit in requiring the Board not to do so.  What the decision letter said under section 6 was that:
‘The Panel makes no comment on the suitability of a particular programme but it does find that your propensity to lose control and act aggressively or violently in a range of circumstances when your sense of self is threatened remains a key and significant risk area which you have yet to address adequately.’

43.	In my judgment this has to be read in the context of the decision letter overall.  In particular, in the preceding section the Panel was clearly concerned that the Claimant himself had failed adequately to understand the primary risk factor which they had identified.  By saying that the Claimant had not yet adequately addressed the primary risk factor the Panel was not simply referring to the fact that the Claimant had not attended the CALM programme; the Panel was referring to its assessment of the Claimant overall.  In the Panel’s view it was necessary for the Claimant adequately to address the primary risk factor, which might well include the successful completion of a CALM programme, but that was not the only issue.  It cannot be said in my judgment that the real basis for the decision was that because the Claimant had not been accepted onto and hence had not satisfactorily completed the CALM programme the Panel would not consider his release or transfer to open conditions.  Thus I reject the submission that this was the effect of the decision.  

44.	Furthermore, even if it is true that in practice the only way in which the Claimant could demonstrate that he had addressed the primary risk factor so as to reduce the risk to a degree which would justify his release or transfer to open conditions was satisfactorily to complete the CALM programme, I accept Mr Karim's second submission that this cannot be said to be an irrational decision, given the role of the Parole Board.  The Panel clearly explained why it considered the Claimant's primary risk factor to be his propensity to lose control and act aggressively or violently in a range of circumstances, and thus why it disagreed with the assessment of the psychologist who had interviewed the Claimant for the CALM programme.  It cannot be said in my judgment that a panel in the position of this Panel would have been acting irrationally had it concluded in terms that the failure of the Claimant to demonstrate that he had adequately addressed his primary risk factor by successfully completing a CALM programme meant that it could not advise his release or recommend he be transferred to open conditions, even if it was not his fault that he had in their view wrongly been assessed as unsuitable for attendance on that course.  

45.	I also accept his third submission that the Panel clearly considered the availability of the ART programme either on release or transfer to open conditions.

46.	Finally, so far as this ground of challenge is concerned, it does not seem to me that the decision as a whole can be considered to be irrational.  It is clearly a decision within the range of reasonable decisions open to a Parole Board Panel with, as Irwin J put it, its reservoir of experience and knowledge, and having had the advantage of hearing detailed evidence from the Claimant as well as the professionals involved in his case.

GROUND 4: THE PANEL FAILED TO GIVE ADEQUATE WEIGHT TO THE CLAIMANT'S COMPLETION OF ACCREDITED OFFENDING BEHAVIOUR COURSES.

47.	The Claimant’s case is that the Panel failed to give proper weight to the success of the work undertaken by him whilst in custody in reducing his risk factors.  Ms Arshad submits that the success of these courses can be seen for example by reference to the post programme report for the Claimant’s successful completion of the ETS programme.

48.	It is clear however from the decision letter, in particular the concluding paragraph of section 6, that the Panel gave full weight to the Claimant’s successful completion of these courses.  In the concluding paragraph the Panel stated in terms that it ‘recognises you have worked hard to address your problems with decision-making and consequential-thinking and have, as a result, reduced the level of risk you pose’.  The Panel went on however to conclude that notwithstanding this the Claimant would continue to pose an unacceptable risk until he completed in-depth work to help him understand his anger and violence.  

49.	In my judgment that is a decision which a Panel was fully entitled to arrive at.  It is for the Panel to balance the competing considerations, and arrive at a final decision.  It is not for the court to second guess that decision.  I am satisfied therefore that there is no substance in this challenge. 

GROUND 6: THE PANEL ERRED IN ITS APPROACH TO CONSIDERATION OF SUITABILITY FOR OPEN CONDITIONS IN THAT IT FAILED TO CARRY OUT A BALANCING EXERCISE BETWEEN RISK AND BENEFIT TO THE CLAIMANT, CONTRARY TO THE SECRETARY OF STATE'S DIRECTIONS TO DO SO.

50.	The directions upon which the Claimant seeks to rely are described as: ‘Directions to the Parole Board under section 32(6) of the Criminal Justice Act 1991 – issued August 2004’.  It is the Claimant’s case that the Panel failed to comply with the content of the directions in relation to advising on transfer to open conditions, because it failed to carry out a balancing exercise as required by the directions.  It is the Defendant’s case, however, first that the directions have no application to IPP prisoners, second if they do they are for guidance only and not mandatory, thirdly that insofar as they do apply they were complied with, particularly because they require the Board to put the emphasis on risk reduction.  The Claimant disputes all three claims.  

Do the Directions apply to IPP prisoners?

51.	In its Summary Grounds of Defence the Defendant argued that the Directions had not been extended to apply to IPP prisoners.  Although this is a submission of some general importance, in this case of course it is only relevant to Ground 6.  Ground 6 relates not to the exercise of the role under s.28 of the Crime (Sentences) Act 1997 in relation to release, but to the exercise of the role of giving advice as to transfer to open conditions.  That is not a role which is provided for by statute.  It appears to be a policy decision of the Secretary of State to invite the Board – as it did here - should it not consider it appropriate to direct release to advise him as to whether the prisoner should be transferred from closed to open conditions.  It is an invitation which the Board – as it did here – is prepared to accept.  The Directions contain a separate section dealing with the performance of this role.  It is Mr Karim’s submission, however, that the Directions generally, including but not limited to this section, have no application to IPP prisoners.      

52.	The section dealing with the transfer of life sentence prisoners to open conditions, provides as follows:

'Transfer of life sentence prisoners to open conditions
	Introduction
1. A period in open conditions is essential for most life sentence prisoners (lifer's). It allows the testing of areas of concern in conditions that more closely resemble those that the prisoner will encounter in the community often after having spent many years in closed prisons.  Lifer's have the opportunity to take resettlement leave from open prisons and, more generally, open conditions require them to take more responsibility for their actions.
2. The main facilities, interventions, and resources for addressing and reducing core risk factors exist principally in the closed lifer estate. In this context, the focus in open conditions is to test the efficacy of such core risk reduction work and to address, where possible, any residual aspects of risk.
3. A move to open conditions should be based on a balanced assessment of risk and benefits. However, the Parole Board’s emphasis should be on the risk reduction aspect and, in particular, on the need for the lifer to have made significant progress in changing his/her attitudes and tackling behavioural problems in closed conditions, without which a move to open conditions will not generally be considered.
	Directions
4. Before recommending the transfer of a lifer to open conditions, the Parole Board must consider:-
•	all information before it, including any written or oral evidence obtained by the Board; 
•	each case on its individual merits without discrimination on any grounds.
5. The Parole Board must take the following main factors into account when evaluating the risks of transfer against the benefits:-
a) the extent to which the lifer has made sufficient progress during sentence in addressing and reducing risk to a level consistent with protecting the public from harm, in circumstances where the lifer in open conditions would be in the community, unsupervised, under licensed temporary release;
b) the extent to which the lifer is likely to comply with the conditions of any such form of temporary release;
c) the extent to which the lifer is considered  trustworthy enough not to abscond;
d) the extent to which the lifer is likely to derive benefit from being able to address areas of concern and to be tested in a more realistic environment, such as to suggest that a transfer to open conditions is worthwhile at that stage.
6. In assessing risk in such matters, the Parole Board shall consider the following information, where relevant and where available, before recommending the lifer’s transfer to open conditions, recognising that the weight and relevance attached to particular information may vary according to the circumstances of each case:-
a) the lifer's background, including the nature, circumstances and pattern of any previous offending;
b) the nature and circumstances of the index offence and the reasons for it, including any information provided in relation to its impact on the victim or victim's family;
c) the trial judge’s sentencing comments or report to the Secretary of State, and any probation, medical, or other relevant reports or material prepared for the court;
d) whether the lifer has made positive and successful efforts to address the attitudes and behavioural problems which led to the commission of the index offence;
e) the nature of any  offences against prison discipline committed  by the lifer;
f) the lifer's attitude and behaviour  to other prisoners and staff;
g) the category of security in which the lifer is held and any reasons or reports provided by the Prison Service for such categorisation, particularly in relation to those lifers held in Category A conditions of security;
h) the life’rs awareness of the impact of the index offence, particularly in relation to the victim or victim's family, and the extent of any demonstrable insight into his/her attitudes and behavioural problems and whether he/she has taken steps to reduce risk through the achievement of life sentence plan targets;
i) any medical, psychiatric or psychological considerations (particularly if there is a history of mental instability);
j) the lifer's response when placed in positions of trust, including any outside activities and any escorted absences from closed prisons;
k) any indication of predicted risk as determined by a validated actuarial risk predictor model or any other structured assessment of the lifer's risk and treatment needs.
7. Before recommending transfer to open conditions, the Parole Board shall also consider the lifer’s relationship with the Probation Service (in particular the supervising probation officer), and other outside support such as family and friends.’

53.	In an impressively detailed supplementary submission Ms Arshad argued that there was no basis for the Defendant’s submission that the August 2004 Directions do not apply to IPP prisoners.  In summary, she submitted that:

(1)	The power conferred on the Secretary of State to give directions to the Board was originally provided for by s.32(6) Criminal Justice Act 1991 and subsequently, following its repeal, by s.239(6) Criminal Justice Act 2003;

(2)	Although the Directions were made under the earlier statute, s.17(2) Interpretation Act 1978 applies here.  That provides that ‘where an Act repeals and re-enacts, with or without modification, a previous enactment then, unless the contrary intention appears … (b) in so far as any subordinate legislation made or other thing done under the enactment so repealed … could have been made or done under the provision re-enacted, it shall have effect as if made or done under that provision’. 

(3)	The functions to be performed by the Board in relation to life prisoners in respect of which the Secretary of State is empowered to issue directions are extended to IPP prisoners by virtue of the amendments to s.34 Crime (Sentences) Act 1997, who thus fall within the definition of ‘life prisoners’.  The amendment to s.34 to include IPP prisoners was made by paragraph 3 of Schedule 18 of the Criminal Justice Act 2003.

(4)	The House of Lords in R (James) v Secretary of State for Justice [2009] 2 WLR 1149 appear to have assumed that the Directions did apply to IPP prisoners – see paragraph 109, as does the Secretary of State – see the Prison Service Order 6010, and the Parole Board itself on its website does not suggest that the Directions do not apply to IPP prisoners. 

54.	In his supplementary submissions Mr Karim argues that the 2004 Directions themselves, when referring to ‘life sentence prisoners (lifers)’, do not either expressly or by implication include IPP prisoners in that category. 

55.	I reject Mr Karim’s submission based on the wording of the 2004 Directions; the extract he cites is from paragraph 1 of the Directions, which does not purport to provide any, let alone an exhaustive, definition of ‘life prisoners’.  To the contrary, in my judgment it can reasonably be assumed, in the absence of anything to the contrary effect, that: (a) where the Directions refer to ‘life prisoners’, which is an expression defined in a section forming part of a Chapter of an Act which itself regulates the Parole Board and its role, (b) if that section is – as it has been - amended to include IPP prisoners within the definition of ‘life prisoners’, (c) unless the Directions are changed to make it clear that they are not intended to apply to IPP prisoners, (d) that they are intended to apply to IPP prisoners as well as other categories of life prisoner.

56.	I am also impressed by Ms Arshad’s submissions as summarised above.  However, I do not consider that it is either necessary or appropriate for me to decide this particular issue.  

(1)	It is not necessary for me to do so, because it is very clear in my judgment that the power to give directions both under s.39(6) Criminal Justice Act 1991 and s.239(6) Criminal Justice Act 2003 only applies to the discharge by the Board of its statutory functions.  Ground 6 does not relate to the discharge of the statutory function of directing release.   What I have to consider is the application of that section of the Directions which applies to the extra-statutory function of advising on transfer to open conditions.  So far as that is concerned I am satisfied, given the plain wording of the sections to which I have just referred, that they cannot be relied upon as the source of any obligation on the Board to follow them in relation to that extra-statutory function.  

(2)	It is not appropriate for me to do so, because it is potentially a point of some general importance, but for the reason I have just given it does not directly arise for determination in this case, and I am conscious that I have not had the benefit of any submissions from the Secretary of State, nor any detailed submissions as to whether s.17(2) Interpretation Act 1978 does apply to the inter-relationship between s.32(6) Criminal Justice Act 1991 and s.239(6) Criminal Justice Act 2003.  

57.	If, as I conclude, neither s.32(6) Criminal Justice Act 1991 nor s.239(6) Criminal Justice Act 2003 can be relied upon as explaining the source of the obligation on the Board to follow the Directions in relation to advising on transfers to open conditions of IPP prisoners (or indeed any life prisoners), what then is the source of the obligation?  In my judgment the answer is as follows:

(1)	It is not disputed by the Defendant that when advising the Secretary of State at his invitation on the question of transfer to open conditions the Board is subject to public law.

(2)	The invitation to advise comes from the Secretary of State.

(3)	The Secretary of State has promulgated Directions which contain a specific section giving specific directions as to how the Board should perform the role of giving such advice. 

(4)	Although it is true that the referral in this case does not state in terms that the Board is requested to provide its advice in accordance with the relevant section of the Directions, in my judgment that is implicit in the referral.   The obvious inference in my judgment is that the Secretary of State expects the advice to be given in accordance with that section of the Directions which he promulgates for that specific purpose.

(5)	It follows in my judgment that there is a legitimate expectation that the Board will provide its advice in accordance with the relevant section of the Directions.

(6)	There is no basis on a proper analysis of the Directions for regarding them as not applying to IPP prisoners.  The section refers to ‘life prisoners’ without limitation, and there is nothing in the wording of the section which indicates that it does not apply to IPP prisoners.  There is no basis for assuming that it could have been intended that this section should not apply to IPP prisoners.  On the contrary, in my judgment since IPP prisoners are life prisoners for the purposes of the legislation, there is no basis for not treating them as such for the purpose of this section.

Are the Directions mandatory or for guidance only in relation to advising on transfer to open conditions?

58.	It is common ground that in R (Girling) v Parole Board [2006] EWCA Civ 1779 the Court of Appeal held, in relation to the exercise of the Parole Board's role under s.28 Crime (Sentences) Act 1997, that the Directions were not to be considered as mandatory directions which the Parole Board was obliged to follow, instead they were to be considered as guidance as to the matters to be taken into account, so far as legally relevant, in order to assist the Board to reach a structured decision on the question, which was its duty to decide, whether or not to direct the release of a prisoner in accordance with the law. 

59.	However Ms Arshad argues that this reasoning does not apply to the role of advising on transfer to open conditions.  In my judgment she is right about this.  The reasoning in Girling for regarding the Directions as for guidance only was because of the objectionable consequences which would otherwise flow if it was the case that the Secretary of State could direct the Parole Board as an independent body performing a statutory role as to what it should and should not do when performing that role.  It is clear in my judgment that the same objection does not apply to the Secretary of State when asking the Board for non-statutory advice, which is in no way binding on him, as to whether a life prisoner should be transferred to open conditions.  It follows in my judgment that there is no need to construe the relevant section as if it contained guidance only; the section does, in my judgment, comprise mandatory directions which must be followed. 

60.	Even however if I was wrong about this, and it was only to be treated as non-binding guidance, nonetheless in my judgment it must still be regarded as proper for the Board to make a balanced assessment of the risks and benefits.  If the test to be applied to transfer to open conditions was precisely the same as that to be applied to release, then there would be no point in this separate request for advice where the Board was unable to direct release.  It appears to me to be obvious that even if the Directions are there for guidance only, they are plainly right in requiring the Board to consider factors particularly relevant to open conditions, particularly the factors identified in paragraphs 5(b), (c) and (d) and 6(j) of the Directions.

Were the Directions complied with?

61.	It is quite apparent in my judgment from a reading of the decision letter that the Panel did not apparently consider the question of transfer to open conditions separate from the question of release, applying a balanced assessment and having particular regard to the factors which apply specifically to open conditions, particularly those identified above.  In my judgment it was obliged to do so.  

62.	In addition to the reasons given above for this conclusion, I refer also to and rely upon the reasoning of Smith J on the same point in the Gordon case to which I have already referred, where at paragraph 38 she said this:

‘I acknowledge of course that it is not incumbent upon the Board to set out its thought processes in detail or to mention every factor they have taken into account. However, in my judgement the balancing exercise they are required to carry out is so fundamental to the decision making process that they should make it plain that this has been done and to state broadly which factors they have taken into account. It does not appear to me that there has been any real attempt to balance risk against benefit. I have said that the assessment of risk is entirely a matter for the panel. But there were at least two benefit factors which should have been taken into account.  …  Neither of these benefits is mentioned in the decision. It seems to me that because the panel has focussed on the risk …, they have ignored the other aspects of the case and have not brought the benefits into consideration.’

63.	Mr Karim, probably recognising the difficulty, submits that it is quite clear from the decision letter that the Panel’s emphasis, as was required under the Directions, was on risk reduction.  He submitted that it is quite clear from the decision letter overall, particularly the concluding paragraph of section 6 and section 8, that since the Panel was clearly satisfied that the primary risk factor had not been adequately addressed thus far under closed conditions, there was still an unacceptable risk which meant that it was unsafe for release or transfer to open conditions.

64.	This is a submission which I cannot accept.  It may very well be that the Panel’s decision would have been exactly the same even had it had regard to all relevant factors and conducted a balanced assessment.  However, in my judgment the submission is wrong for the following reasons:

(1)	I have already concluded that the Panel was required to conduct a balanced assessment taking into account all relevant factors.

(2)	There is no basis for believing that it did conduct a balanced assessment taking into account all relevant factors.  The tenor of the decision letter is that the Panel, having considered that the level of risk was such that it could not direct release, simply applied the same consideration to the question of transfer to open conditions and regarded it as conclusive against the Claimant.

(3)	Thus in this case there is no basis for believing that the Panel specifically considered whether the Claimant would be likely to comply with the conditions of temporary release, would be trustworthy enough not to abscond, or would be able to address areas of concern in a more realistic environment, which were 3 of the ‘main factors’ which the panel was specifically required to take into account when evaluating the risks against the benefits. 

(4)	Furthermore, there is no basis for believing that the Panel specifically considered the availability of the ART programme in open conditions when conducting the balanced assessment.  It seems to me for example to be clear that when conducting this assessment the Panel should have at least considered this as part of the overall balancing exercise.  That is, it seems to me, particularly apposite here, given that the Claimant had been unable to undertake the CALM programme in closed conditions through – it appears - no fault of his own.  Given all of the other positives in this case, it appears to me that the Panel ought to have considered in terms whether the risk reduction aspect would be satisfied on the basis that further work in relation to anger management was undertaken in open conditions, especially since the referral did invite it to comment on the degree of risk involved and the continuing areas of risk that needed to be addressed and thus – whilst it was specifically asked not to comment on or recommend specific treatment needs or offending behaviour work required – it was not simply being required to advise ‘yes’ or ‘no’ and also on the basis that the final decision was clearly a matter for the Secretary of State anyway – see paragraph 2.2 of PSO 6010.

(5)	It seems to me therefore that it would be wrong for me to, in effect, substitute my own assessment for that of the Panel by concluding that it would have made no difference had it conducted the balancing assessment.

65.	Accordingly, in my judgment the appropriate course must be to quash that part of the decision which relates to the advice as to transfer to open conditions and to direct that this question should be considered afresh in accordance with the relevant section of the Directions.

66.	In her supplementary submissions Ms Arshad, although accepting – in my judgment rightly – that an order that the decision be quashed in part (i.e. only in relation to the advice as to transfer to open conditions) is one which it is open to this court to make, contends that it would be unfair to do so in this case, since: (a) the reconsideration would have to be conducted by a fresh panel; (b) there would then be the real risk of inconsistency if the fresh panel was of the view that there should be a release but was empowered only to advise transfer to open conditions.

67.	I am unable to accept these submissions.  Firstly it does not seem to me that I either can or should direct that this question should have to be considered by a fresh panel.  There would in my judgment be no objection in principle to the same panel reconsidering this question, there being no allegation – or conceivable basis for an allegation – of bias against it.  Second, even if for reasons of practicality the question would have to be considered by a fresh panel, it does not appear to me that it would be unjust or unfair to limit its role to advising on transfer to open conditions.  As Mr Karim submits in his closing submissions, the contrary approach would be to allow the Claimant to obtain through the back door what he could not achieve through the front door, i.e. a full reconsideration of release as well as transfer when I have rejected the challenge to the decision in relation to release.  The courts must respect the fact that this Panel has – on my analysis – reached an unimpeachable decision in relation to the performance of its statutory function of deciding on release.

CONCLUSIONS

68.	The challenge succeeds on Ground 6 but not on any other grounds.     
 
69.	Finally, I express my gratitude to both counsel for the high standard of their submissions, which has made my task in preparing this judgment considerably easier than it otherwise would have been.