Case No. CO/972/2014 
Neutral Citation Number: [2015] EWHC 2528 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Date: Friday, 15 May 2015
 
B e f o r e: 

HIS HONOUR JUDGE BLACKETT 
(Sitting as a Judge of the High Court) 

Between: 
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KHAN
Claimant

v 

PAROLE BOARD
Defendant 
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Computer‑Aided Transcript of the Stenograph Notes of  
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Mr P von Berg (instructed by GT Stewart) appeared on behalf of the Claimant 
The Defendant did not attend and was not represented  
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J U D G M E N T 

1.	JUDGE BLACKETT:  	This is an application for judicial review of the defendant's decision dated 4 December 2013 not to recommend the claimant's transfer to open conditions, permission having been granted on the papers by HHJ Moulder, sitting as a judge of the High Court, on 10 October 2014. 
2.	On 21 April 2006 the claimant pleaded guilty to an offence of robbery.  He had 11 previous convictions for 33 offences between 1997 and 2004, including criminal damage, burglary, theft, common assault, threatening behaviour, possession of cannabis and assault with intent to rob.  The offence related to the claimant stealing a mobile telephone from a man having threatened him with violence, and was motivated by the need to obtain money for drugs.  He was sentenced to imprisonment for public protection with a minimum term of four months for an offence of robbery.  His minimum term expired on 19 August 2006.  It is worth noting that the sentence of imprisonment for public protection was introduced by the Criminal Justice Act 2003 section 225.  The Criminal Justice and Immigration Act 2008 (section 13) amended section 225 so that the notional minimum term must be at least 2 years when passing a sentence of imprisonment for public protection.  The Legal Aid Sentencing and Punishment of Offenders Act 2012 abolished imprisonment for public protection.  The claimant has been in prison for 9 years.
3.	These are factors which should have played on the minds of the Parole Board panel when considering the claimant's case.  In R(Osborn) v Parole Board [2014] AC 1115 Lord Reed JSC said, at paragraph 83:
"In relation to cases concerning post‑tariff indeterminate sentence prisoners, it has been said more than once that the board should scrutinise ever more anxiously whether the level of risk is unacceptable, the longer the time the prisoner has spent in prison following the expiry of his tariff."
The Board might also add to their anxious scrutiny consideration of the length of the original minimum term when compared with the time actually served, particularly where that minimum term was so short that the offender may not have been sentenced to an indeterminate sentence after the changes made by the CJIA 2008.
4.		By all accounts the claimant's behaviour in prison was mixed.  He received 7 proven adjudications for possession of items not on his property card (x 2), disobeying a lawful order (x 4) and having a positive drugs test for buprenorphine.  
5.		On 29 March 2012 the claimant's case was considered by the Parole Board who recommended that he be transferred to open conditions.  He was transferred to open conditions on 12 October 2012 but then transferred back to closed conditions on 19 December 2012.  On return to closed conditions his behaviour was again mixed although a drugs test in February was negative and his behaviour in the months leading up to his second Parole Board hearing was good.
6.		On 28 November 2013 the claimant's case was again considered by the Parole Board which considered whether it would be appropriate to direct his release.  This was the fourth review.  The Parole Board, in its oral decision letter dated 4 December 2013, concluded:
"After considering all the evidence and the submissions made on your behalf the panel is satisfied that notwithstanding your good behaviour over the past few months your risk has not reduced to a level that could be safely managed in the community and in consequence the panel does no direct your release.
The panel considered whether you should now be returned to open conditions.  The purpose of spending time in open conditions is to provide an opportunity for any areas of on‑going concern to be tested in conditions more closely resembling those to be found in the community; to allow you the opportunity to take more responsibility for your actions and to develop or advance your release plan.  The panel is satisfied that you have not yet addressed the risk factors that contributed to your failure in open conditions and that it would be premature to recommend your return to open conditions.  In consequence the panel advises the Secretary of State that you are not suitable for open conditions and does not make a recommendation for transfer to open conditions."
7.	The claimant does not challenge the decision to refuse to direct his release.  The challenge by the claimant is to the decision not to recommend his transfer to open conditions.  That challenge is based on two grounds: first that the decision was unlawful in that it failed to give proper, sufficient and intelligible reasons, and second that it was irrational in that it gave too much weight to unproven and unsubstantiated allegations of bad behaviour against the claimant.
8.	The Secretary of State has issued directions to the Parole Board (dated August 2004).  Those directions include a section concerned with the Transfer of life sentence prisoners to open conditions (The Directions).  It states: 
1   A period in open conditions is essential for most life sentence prisoners (lifers).  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.  Lifers have the opportunity to take resettlement leave from open prisons and, more generally, open conditions require then to take more responsibility for their actions.
2.  The main facilities, intervention 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 Boards 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 be considered.
9.	Thereafter under the title "Directions" there are 21 numbered points directing the Parole Board to consider certain matters before recommending the transfer of a lifer to open conditions 
10.	In R(D'Cunha) v Parole Board [2011] EWHC 128 (Admin) His Honour Judge Davies, sitting as a judge of the High Court, considered the status of these directions having heard argument that they were for guidance only.  He said, at paragraph 59, "the section [directions in the Secretary of State's August 2004 document] does, in my judgment, comprise mandatory directions which must be followed".  I respectfully agree with this assessment.
Ground 1 ‑ the decision was unlawful in that it failed to give proper, sufficient and intelligible reasons.
11.	The Parole Board was provided with reports from three professionals all of whom recommended that the claimant be moved to open conditions.
12.		Catherine Parkin, a psychologist, provided a long and detailed report.  She reported that the claimant admitted to her that he had previously lied about his mental health in an effort to obtain a transfer to what he perceived to be an easier environment of a secure hospital.  She reported that he had since reflected on this and accepted responsibility for his more negative behaviour and expressed a desire to move forward in a more positive way.  Ms Parkin reported that the claimant was very accepting and honest about his substance misuse problems.  In relation to his use of drugs while in open conditions, Ms Parkin asserted that it could be considered that he dealt well with this lapse and it is to his credit that he did not subsequently relapse.  She considered risk management items, the claimant's use of violence and identified protective factors.  She concluded that the claimant presented as having some increased risk of future violence relating to the presence of a number of risk factors and recommended certain interventions, including work on a one‑to‑one basis.  She said that should the claimant start and engage effectively in her recommended interventions, she would support the progressive move of transferring him to open conditions.
13.	Joanne Rafferty, the offender supervisor, reported that recent reports of his behaviour were very positive, albeit the good behaviour had been sustained for a relatively short period and his risk assessment had been reduced from high to medium.  She recommended that the claimant be returned to open conditions to afford him the opportunity to demonstrated a period of positive behaviour and assist him to resettle in a staged way through release on temporary licence.
14.	Lucy Jennings, a probation officer, took account of the psychology report and offender supervisor's report and recommended that the claimant be moved to open conditions.  She said that it was her professional opinion that he would benefit from a sufficient time in open conditions in order to evidence that he is able to use the skills he has learnt from offending behavioural programmes.
15.	Mr von Berg for the claimant submitted that the Parole Board failed to address the recommendations for release by three professionals as they should have done when applying the mandatory directions from the Secretary of State.  He cited R(Gordon) v The Parole Board [2000] Prison LR 275 in which Smith Mrs J said (at paragraph 38):
 "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"
16.	In reviewing the Parole Board's decision I must consider whether they considered the matters they are required by the Directions.  I cannot tell from the decision whether the panel has considered, as they should under those Directions, the positive aspects of his behaviour including the negative drug test after he returned to closed conditions, the lack of any diagnosed psychiatric condition, the extent to which the proposed interventions would assist in reducing the assessment of risk further and his relationship with the probation service.  Further I am unable to tell from the decision whether the panel scrutinised the level of risk more anxiously because the significant differential between the minimum tariff served and the length of time spent in prison.  In a case like this a panel might find it helpful to list each of the Directions, perhaps in an annex, and record how they have complied with them.  Here that was not done and it is impossible to ascertain whether the panel did indeed comply.  It is not sufficient to say that one can draw a conclusion that they did by "reading between the lines".
17.	In my view the Parole Board's oral decision letter dated 4 December 2013 failed to give proper and sufficient reasons for the rejection of the three professionals' recommendations that the claimant should be transferred to open conditions.  In those circumstances the decision is unlawful.
Ground 2 ‑ the decision was irrational in that it gave too much weight to unproven and unsubstantiated allegations of bad behaviour against the claimant 
18.	The Parole Board relied on allegations of bad behaviour and listed reports of coming to the attention of the security department on "numerous occasions" and being suspected of being involved in the drug culture, bullying and being involved when the MDT suite was set on fire".  The panel acknowledged that the allegation relating to the fire was not substantiated by way of evidence and that the claimant denied involvement.  However, the panel did not appear to take into account the claimant's subsequent negative drug test.  In referring to the claimant's expulsion from secondary school for fire setting, it appears that the panel gave significant weight to the allegations notwithstanding the claimant's denial.
19.	The Parole Board is entitled to take hearsay evidence into consideration and to consider allegations of bad behaviour but it must be careful not to ascribe too much weight to it.
20.	In R(Sim) v Parole Board [2003] EWHC 152 (Admin) 1288, Keene LJ referred to R(DPP) v Havering Magistrates' Court [2001] 1 WLR 805 in which Latham LJ (at paragraph 41) said in relation to bail applications:
"What undoubtedly is necessary, is that the justice, when forming his opinion, takes proper account of the quality of the material upon which he is asked to adjudicate.  This material is likely to range from mere assertion at the one end of the spectrum, which is unlikely to have any probative effect, to documentary proof at the other end of the spectrum."
21.	Citing this passage Keene LJ said (at paragraph 57):
"That passage seems to me to be generally applicable to proceedings before the Parole Board when it is assessing risks, especially bearing in mind that recall decisions are not criminal proceedings within the meaning of Article 6.  Merely because some factual matter is in dispute does not render hearsay evidence about it in principle inadmissible or prevent the Parole Board taking such evidence into account.  It should normally be sufficient for the board to bear in mind that the evidence is hearsay and to reflect that factor in the weight which is attached to it."
22.	It seems to me that the panel gave far too much weight to the unsubstantiated allegations in relation to the claimant's previous behaviour in prison and that it did not give sufficient weight when balancing the evidence to the claimant's own account and to the positive factors which were advance on his behalf.  In those circumstances the conclusion to deny the claimant's request to transfer to open conditions was irrational.
23.	For the reasons I have given the decision letter does not demonstrate that the Parole Board properly carried out the balancing exercise required when considering whether the claimant was suitable for open conditions.  Therefore I order that 
(a) the decision of the Parole Board dated 4 December 2013 be quashed;
 (b) the matter is remitted to a fresh panel for a re‑hearing; and
 (c) in view of the age of this matter and the length of time the claimant has been in prison since the minimum term expired, that re‑hearing is to take place within 6 weeks of this order.
24.	JUDGE BLACKETT:  Mr von Berg, you are here; I got a note from your clerk saying you were not going to be here.
25.	MR VON BERG:  My Lord, I was delayed on the train and I thought it prudent to pass that on. I apologise if I caused any confusion.  
26.	JUDGE BLACKETT:  I am grateful for your amendments which I will incorporate.
27.	MR VON BERG:  My Lord, because of the short time in which the Parole Board is being ordered to act, when would we be able to get a final copy of your Lordship's judgment.
28.	JUDGE BLACKETT:  Well, we have just been discussing that.  It is available and I can senD it by email whenever I have to, but I am not quite sure where I have to send it.  We are going to sort that out.  But I am content that you have my draft.  I am content that you can use that until you have the final judgment, if that helps.
29.	MR VON BERG:  It would help considerably, my Lord.  To be more specific, for the purpose of not just providing it to the Board but to be sent onward for any professionals that are compiling reports in the next four weeks in advance of the re‑hearing.
30.	JUDGE BLACKETT:  Yes.  I am content that you can use that document.  In the document which I sent you, the only changes are those ones which you suggested. You can either use the draft as it is or you can amend it in accordance with those changes.  You can say that I was content that you use it until the final judgment is produced.
31.	MR VON BERG:  My Lord, yes.  Just in case there is any dispute with the Parole Board as they were not here, may I respectfully ask when we might be able to expect a final version of the judgment.
32.	(It was agreed between the shorthand writer that the transcript would be done if the draft was provided and the final version ordered)
33.	JUDGE BLACKETT:  I will order for the transcript to be expedited.  The only other change is that each of the main paragraphs were numbered in the actual judgment.
34.	MR VON BERG:  My Lord, yes.
35.	JUDGE BLACKETT:  We are going to treat this as read‑out judgment. It will be expedited and hopefully you will get it some time in the middle of next week.
36.	MR VON BERG:  Thank you very much, my Lord.
37.	JUDGE BLACKETT:  As to costs, thank you very much for your skeleton.  I don't know whether you want to add anything to it.
38.	MR VON BERG:  I do, my Lord.  In discussing this case yesterday with my solicitor who is very experienced in dealing with the Parole Board, my Lord I wish to take an additional point with your Lordship this morning.
39.	JUDGE BLACKETT:  Yes.
40.	MR VON BERG:  The Parole Board has maintained throughout these proceedings that it is a court and therefore entitled to the protection of the rules in Davies.  I wish to first of all to take issue with that, my Lord.  My Lord, this is a point of some substance and I have unearthed two authorities.  One before the Lord Chief Justice and one of Silber J.  Although these are authorities produced this morning, I hope my Lord has some time to consider them.  Those were handed up this morning.  Have those reached my Lord?
41.	JUDGE BLACKETT:  No, they haven't.
(The Court Associate handed them up)
42.	Is this a matter that I should be dealing with ex‑parte?
43.	MR VON BERG:  My Lord, I did have some pause to consider that.
44.	JUDGE BLACKETT:  Yes.
45.	MR VON BERG:  Of course, our position is the Parole Board knew that permission was granted, therefore a hearing on the merits would occur, and it was open for a successful claimant to make any application for costs.  However, looking at the matter in the round, the Parole Board has not had sufficient time to consider the points which I am about to make this morning which, as I have just said, are points of some substance.  In a nutshell ‑‑
46.	JUDGE BLACKETT:  Well, before you carry on, it must be right, must it not, that they have the opportunity to respond before I make any determination.
47.	MR VON BERG:  My Lord, that would be a perhaps a safe way of dealing with an issue of this substance, yes.  
48.	JUDGE BLACKETT:  Yes.  Perhaps what I ought to order in relation to costs is that I ought to set a timetable for costs so that both parties can make their submissions then the matter can be dealt with on the papers by a costs judge or by me if I happen to be sitting.  Do you not think that would be a better way forward, a safer way forward?
49.	MR VON BERG:  My Lord, we certainly think that that it would assist if the Parole Board is given an opportunity because the point that we would make contradicts a point in their own litigation strategy.
50.	JUDGE BLACKETT:  Yes.
51.	MR VON BERG:  And so if we were right, it would change the way in which the Parole Board deals with challenges in respects of recommendations for open conditions.
52.	JUDGE BLACKETT:  Yes.
53.	MR VON BERG:  So it is a discrete point within their strategy but it does apply across the board.
54.	JUDGE BLACKETT:  Yes.
55.	MR VON BERG:  Because of that and because of the law that is involved here, we do suggest that an oral hearing would be required to hear argument on it.
56.	JUDGE BLACKETT:  Yes.  Very well.  I think that is a strong point. I agree.  In which case I am not going to consider costs, costs will be reserved today.  But we need to set down a timetable leading up to an oral hearing to allow a judge to adjudicate on the matter of costs.
57.	MR VON BERG:  My Lord, yes.
58.	JUDGE BLACKETT:  Could you therefore draft an order for me.  I suspect you need probably 14 days.
59.	MR VON BERG:  My Lord, yes, that would assist.  I have already prepared the argument so I could do it shorter form, so within 7.
60.	JUDGE BLACKETT:  Very well.  I think the Parole Board will need 28 days to respond, so there needs to be a hearing not before probably the beginning of July.  Do you agree?
61.	MR VON BERG:  My Lord, yes.  Considering the time that has been given to my opponent, may I ask for 14 days? 
62.	JUDGE BLACKETT:  Yes, indeed.  Therefore, if you could draft an order which I can then sign and it can be sealed, then that will take that forward.  That is a much better way forward, I think.  I will read the cases because they are of interest.