CO/3465/2014 
Neutral Citation Number: [2014] EWHC 4763 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
The Courthouse 
 1 Oxford Row
Leeds
West Yorkshire
LS1 3BG 

Monday, 24th November 2014
 
B e f o r e: 

MR JUSTICE KING
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Between: 
THE QUEEN ON THE APPLICATION OF GOURLAY 
Claimant

v 

PAROLE BOARD 
Defendant 
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Mr Thornton (instructed by Chivers Solicitors) appeared on behalf of the Claimant
The Defendant did not appear and was not represented
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J U D G M E N T
1.	MR JUSTICE KING:  This is a challenge by way of judicial review to the Decision of the Parole Board, dated 10th March 2014, (‘the Decision‘)following an oral hearing on 25th February 2014, first not to direct the release on licence of the claimant, and secondly,  not to recommend the transfer of the claimant to open conditions. The challenge is directed solely at the second part , namely the decision not to recommend open transfer.
2.	The claimant is a serving prisoner.  In 1999, following his conviction for rape, he was sentenced to life imprisonment with the minimum term to be served before he could be considered by the Parole Board for release on licence specified, following appeal, as 6 years less time served.  That minimum term tariff was completed on 1st August 2005, some 8 or 9 years ago.  
3.	The life sentence was imposed under the statutory automatic life sentence provisions consequent upon his antecedent history.  
4.	That history was this.  In 1991 he had been convicted of three rape offences on two separate women.  The women were unknown to each other.  He was sentenced to 9 years' imprisonment.  Having served two‑thirds of that sentence he was released in 1999.  Following his release from custody in Scotland and whilst living in Dorset and working in the agricultural industry he committed the rape giving rise to the conviction and life sentence to which I have already referred.  In other words he raped a third woman.  Again, she was unknown to his previous victims.
5.	It is stated in the grounds, and I accept, that the circumstances of the rapes were strikingly similar: the claimant was acquainted with all his victims (in the case of one of them he claims to have had a previous sexual relationship);in all cases alcohol was a prominent component, not just for the claimant but also for his victims; the victims’ accounts involved the use of excessive violence by the claimant (the victims were strangled) to enforcetheir compliance to sexual intercourse.  
6.	Significantly for present purposes the claimant has always denied he had any sexual intercourse of any sort with the victim of the index offence.  The prominent factor in this case is moreover that of denial on the part of the claimant in respect of all his sexual offending.  
7.	The Parole Board in their decision assessed the risks posed by the claimant (final paragraph of section 5) in these terms:  
"Your risks are to young women in the community who are known to you when you and perhaps they have been drinking (perhaps excessively)."
8.	Mr Thornton, on behalf of the claimant, does not seek to persuade me that this  was anything other than a correct analysis of risk. 
9.	The Parole Board in determining whether to recommend transfer to open conditions was acting pursuant to its statutory duty under section 239 of the Criminal Justice Act 2003. ( ‘section 239’ ). Under subsection (2) it is the duty of the Board to advise the Secretary of State with respect to any matter referred to it by him, which is to do with early release or recall.  
10.	In considering whether to make a recommendation for transfer the Parole Board followed, and were under a duty to follow, the Directions of the Secretary of State in relation to the transfer of life sentence prisoners to open conditions.
11.	The source of the power of the Secretary of State to issue  Directions emanates from subsection (6) of section 239. In giving such directions the Secretary of State in accordance with that subsection must have regard to (a) the need to protect the public from serious harm from offenders; (b) the desirability of preventing the commission by them of further offences and of securing their rehabilitation.
12.	Mr Thornton took me through the material paragraphs of these Directions in respect of transfer to open conditions. 
13.	 The introduction at paragraph 1.1 says as follows:  
"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 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 risks 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 a significant progress in changing their attitudes and tackling behavioural problems in closed conditions, without which a move to open conditions will not generally be considered." 
14.	The following directions are then set out in paragraph 1.2 as follows:  
"1.  Before recommending the transfer of a lifer to open conditions, the Parole Board must consider: 
2.  all information before it, including any written or oral evidence obtained by the Board.
3.  each case on its individual merits without discrimination on any grounds. 
4.  the Parole Board must take the following main factors into account when evaluating the risks of transfer against the benefits: 
5.  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; 
6.  the extent to which the lifer is likely to comply with the conditions of any such form of temporary release; 
7.  the extent to which the lifer is considered trustworthy enough not to abscond; 
8.  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. 
9.  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: 
10.  The lifer’s background, including the nature, circumstances and pattern of any previous offending; 
11.  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; 
12.  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; 
13.  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; 
14.  the nature of any offences against prison discipline committed by the lifer; 
15.  the lifer’s attitude and behaviour to other prisoners and staff; 
16.  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; 
17.  the lifer’s 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 their attitudes and behavioural problems and whether they have taken steps to reduce risk through the achievement of life sentence plan targets; 
18.  any medical, psychiatric or psychological considerations (particularly if there is a history of mental instability); 
19.  the lifer’s response when placed in positions of trust, including any outside activities and any escorted absences from closed prisons; 
20.  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. 
21.  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." 
15.	For present purposes I highlight the following. Before recommending the transfer to open conditions the Board must consider all information before it including any written or oral evidence obtained by the Board. The Board must take identified "main factors" into account when evaluating the risks of transfer against the benefits, which include: 
"the extent to which the lifer has made sufficient progress considering 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." (para. 5)
and: 
"the extent to which the lifer is likely to comply with conditions of any such form temporary release." (para. 6)
Further, "in assessing risk in such matters" the Parole Board must consider identified information which includes:
"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..." (para. 13)
and: 
"the lifer's awareness of the impact of the index offence, particularly in relation to the victim's family, and extent of any demonstrable insight into their attitudes and behavioural problems and whether they have taken accepts to reduce risk through the achievement of life sentence plan targets." (para. 17)
16.	Mr Thornton accepts that the task of the Parole Board is, as directed, to put emphasis on risk reduction, although a move to open conditions has to be based on a balanced assessment of risk and benefits.
17.	At paragraph 7, the concluding paragraph of the Decision, the Parole Board Panel stated:  
"The Panel does not consider your risk levels have reduced to the point where they can be safely managed in open conditions and does not recommend a transfer to open conditions.  Both you and the prison authorities must give further consideration to how your risk levels may be reduced."
18.	Mr Thornton accepts that if this were a proper conclusion to which, on the material before it, the Panel were entitled to come, there would be no basis of challenge in these proceedings.  His submission however is that on careful analysis, the reasoning given in the Decision for coming to this conclusion is flawed. In particular it fails to take into account material factors going to the risk assessment, and puts an impermissibly high emphasis on one factor alone, namely that of the claimant's denial of his offending.
19.	Mr Thornton invited me to look carefully at the reasoning in  Decision Letter.  Paragraph 1 properly sets out the function of the Board.  It was to consider whether it would be appropriate to direct release and if release was not directed, whether it was appropriate to recommend transfer to open conditions.  Paragraph 2 identified the evidence considered by the Panel.  The dossier ran to some 202 pages.  Evidence was heard from the prison psychologist, the offender supervisor and the offender manager. It further identified that the claimant throughout was represented by Mr Thornton and that the claimant's application was for a recommendation for transfer to open conditions.  Paragraph 3 set out properly ‑ there is no challenge ‑ an analysis of the claimant's offending.  It referred, among other things, to the claimant remaining "in total denial of all your offences".  It correctly recorded the trial judge's description of the claimant as ‘a very dangerous man indeed, a grave threat to young women for a period which could not be determined’  
20.	As at the date of the Parole Board's decision the claimant was some 47 years of age. It follows that he was a much younger man at the time of the index offending.  Paragraph 4 of the Decision sets out the risk factors identified in respect of the claimant, according to the evidence. Those factors are recorded as "attitudes to women, using violence to enforce your beliefs you are entitled to sex, excessive use of alcohol, poor thinking skills and poor victim empathy.  Some report writers identify your denial as a risk factor in itself".  
21.	I interpose that Mr Thornton properly submitted, in my judgment, that the claimant's denial is not in itself a risk factor. The risk posed by the claimant was that which has already been identified in this judgment, extracted from the later section 5 of the Decision, namely a risk of serious harm to young women in the community, known to the claimant when he and they are in drink.  Denial is a factor which goes to assessment of the current degree of that risk.  Is it high?  Is it reduced?  Is it non existent?
22.	There then follows in section 5 of the Decision Letter a very important section, headed  "Evidence of change during sentence".  It is in these terms:  
"Your denials have thus far prevented you from accessing any courses designed to address the risks surrounding sexual offending.  You have been assessed for the Sexual Offenders Treatment Programme (SOTP) but have not met the criteria because of your denials.  You have completed the more generic courses Enhanced Thinking Skills; Alcohol Awareness and Thinking Skills Programme.  The Panel notes that, during your earlier sentence, you completed the Reasoning and Rehabilitation Course but went on to commit a similar offence shortly after release ‑ providing evidence that that sort of intervention was not sufficient to lower your risks factors.  
The Panel noted that you have made good efforts to review your overall behaviour and how you might live in future.  However concerns remain about your general attitudes regarding entitlement as evidenced by the work you have completed with psychologists.  
The view of all witnesses and other report writers is clear and stark:  you cannot reduce your risk factors without attending a SOTP course and you cannot attend SOTP without admitting at least some sexual offending.  Your Offender Manager showed some insight into the position this put you in.  He was able to confirm the Panel's understanding that courses to address sexual offending which deniers can access are currently being piloted both in the community and the closed estate.  That is perhaps a necessary development after the clearly expressed view of the Court of Appeal that denial alone is not a sufficient reason for refusing a progressive move or release. 
Your general behaviour in prison gives no cause for concern; you have no recent adjudications and are an enhanced prisoner. There has been no evidence of violent or sexually inappropriate behaviour but that is to be expected within a closed prison estate.  Your risks are to young women in the community who are known to you when you, and perhaps they, have been drinking (perhaps excessively)."
Then under the section 6 headed "Panel's assessment of current risk of re‑conviction and serious harm" the conclusion of the Panel is  that given the number of the offences including ones committed on bail and shortly after release, the claimant's risk of committing further offences of a sexual nature "remains high until your sexual treatment needs have been addressed".
23.	I have already set out the final conclusion of the Panel within section 7 of the Decision but I ought to add that that conclusion was prefaced by the Panel recording: "There is no support from the report writers for a progressive move".
24.	Mr Thornton's submission to me has been that the only proper analysis of this Decision is that the Panel, in concluding that a transfer to open conditions was not to be recommended, have relied solely, to the exclusion of all other factors, on the factor of the claimant's denial.  
25.	Mr Thornton referred me to the jurisprudence which has developed in the case law on the proper approach of a Parole Board Panel to the assessment of risk where the prisoner is in denial. The Court of Appeal authorities to which I was referred have been concerned with decisions relating to the grant of parole, that is a direction for release, but I accept they must apply equally to decisions whether to recommend a transfer to open conditions.
26.	I was referred in particular to the decision of His Honour Judge Waksman QC, sitting as a deputy judge of the High Court, in R (on the application of Geoffrey Austin) v The Parole Board [2011] EWHC 2384 (Admin). At paragraph 78 the judge summarised the effect of the case law to date as being: 
"The upshot is that it would be wrong to treat the prisoner's denial of guilt as conclusive, or all but conclusive against the grant of parole on the basis of the risk of future offending, but it may be a relevant, indeed a highly relevant factor in any given case. In my judgment, therefore, where a denial of guilt is involved, a careful analysis of the facts of and the decision in the case in question is required to see whether there has been an impermissible emphasis on that denial of guilt." 
Speaking for myself, I would not accept as the opening sentence of that paragraph as being a necessarily accurate analysis of the case law which had gone before.  It seems to me what the previous decisions of the Court of Appeal indicate is that a prisoner's denial may well be a determinative consideration but not necessarily so ,and that a very careful assessment has to be taken by the Parole Board of all the competing factors in coming to its conclusions as to whether or not a prisoner's risk has been sufficiently reduced so as to enable a recommendation that he can be safely transferred to open conditions.  I refer to the totality of the previous decisions which Judge Waksman set out at paragraphs 72 through to paragraphs 77 of his judgment.  I refer to Pill LJ's observations at paragraph 13, in Oyston v The Parole Board which in itself was referring to a Divisional Court decision in Zulfikar (26th July 1995) and set out a series of observations from that decision.  Those observations included the following: 
"Should he be denied parole solely because of his attitude to the offence? In the majority of cases I think plainly not. Each case will depend on its own circumstances and this Court should avoid trying to lay down principles which may not be universally applicable... At one end of the scale is the persistent offender, in particular the persistent sex offender, who refuses to accept guilt in the face of clear evidence and is unable to accept that he has a propensity to such conduct which needs to be tackled if he is not offend again. In such a case it may well be a determinative consideration..."
27.	Pill LJ referred further to the judgment of Laws J (as he then was) in R v Hepworth (26th March 1997) to the effect that it would be unlawful for the Board to deny recommendation for parole on the ground only of denial of guilt.  The judgement from Laws J includes the following: 
"But in some cases, particularly cases of serious persistent violent of sexual crime, a continued denial of guilt will almost inevitably mean the risk posed by the prisoner ... if he is paroled either remains high or, at lease, cannot be objectively assessed. In such cases the Board is entitled, (perhaps obliged) to deny a recommendation." 
28.	The Deputy Judge in Austin then referred to the observations of Lord Bingham's LCJ at paragraph 43 of Oyston, as follows:
"... the task of the Parole Board is the same as in any other case: to assess the risk from a particular prisoner if released on parole, will offend again. In making this assessment the Parole Board must assume the correctness of any conviction. It can give no credit to the prisoner's denial. Such denial will always be a factor and may be a very significant factor in the Board's assessment of risk, but it will only be one factor and must be considered in the light of all other relevant factors. In almost any case the Board would be quite wrong to treat the prisoner's denial as irrelevant, but also quite wrong to treat a prisoner's denial as necessarily conclusive against the grant of parole."  
   I have emphasised the word "necessarily" in those observations.
29.	In my judgment, the duty of the Parole Board Panel in this case, as in all cases was clear. It had to, on the basis of the available evidence, assess the risk still posed by the claimant.  The nature of that risk had already been identified as set out above. The Panel’s duty was to assess the current degree of that risk, and it had to proceed on the basis that the conviction was safe, notwithstanding the denials.
30.	This may well have been a case where taking all factors into consideration, a rational conclusion was that the claimant's risk remained at such a high level that his transfer could not be recommended. 
31.	 I have been persuaded however by Mr Thornton that on proper analysis the Parole Board Panel in this case in assessing that continuing degree of risk, not simply placed a high weight on the factor of denial ,which they would be entitled to do, but has used the factor of denial as the sole factor to be put in the balance when assessing that degree of risk.  
32.	The Panel has patently acknowledged the existence of factors which, on any view, in my judgment should go into that balance, that is to say the Panel acknowledged in section 5 the fact that the claimant had completed what were described as more generic courses, the Enhanced Thinking Skills course, the Alcohol Awareness course, the Thinking Skills Programme.  The Panel acknowledges that the claimant is of enhanced status, meaning that while in custody over many years, his behaviour has not given rise to any concern of late.  However nowhere do I find that they acknowledge that these are factors which go to the assessment of risk.  The Panel appear to have accepted as inevitable that the risk factors in the claimant's case could not be reduced without his attending the sexual offender's treatment programme which he could not attend without admitting at least some sexual offending. Another factor which the Panel do not appear to have taken into account is that of the maturation of the claimant, that is his having matured from a relatively young man to one of 47 years, in circumstances which are fully rehearsed in the material before the Parole Board.  
33.	It may be, as I have already indicated, that the evidence in support of the stated proposition (that the material risk factors could not be sufficiently reduced to allow transfer, without the claimant attending the sexual offender's treatment programme which he could not attend without admitting at least some sexual offending) was such that the other factors relied on by Mr Thornton, which I have already identified, would not ultimately in any balancing exercise, have outweighed that factor of denial.  But the claimant was entitled, in my judgment, to a reasoned decision which took those other factors into account.  Notwithstanding that the decision of the Parole Board expressly acknowledged the Court of Appeal jurisprudence, "denial alone is not a sufficient reason for refusing a progressive move or release," that, I am afraid to say in my judgment, is exactly what happened in this case.
34.	These conclusions, on my part, are sufficient for me to conclude that this decision should be quashed.  The Parole Board will no doubt when considering these matters afresh, take on board what is set out in this judgment.
35.	I should also record that I find there is force in a further submission made to me by Mr Thornton that the Parole Board Panel did not apply its mind to whether or not the risk posed by the Claimant to the public could be safely managed in open conditions having regard to the nature of that risk as it was found to be.  I repeat that risk was found to be "to young women in the community who are known to you when you and perhaps they have been drinking (perhaps excessively)." 
36.	    Mr Thornton's submission to me was that that risk would not in itself arise in the event that the claimant were removed to open conditions, and would only arise if the claimant were or given temporary release while in open conditions.
37.	It is not necessary for me to reach a concluded view on whether or not that submission is sufficient to render the reasoning of the Parole Board Panel in its Decision flawed in public law terms.  Against it is the Direction, to which I have already referred, issued by the Secretary of State, which referring to "the extent to which the lifer has made sufficient progress during sentence in addressing and reducing risk to a level consistent with protecting public from harm, in circumstances where the lifer in open conditions would be in the community, unsupervised, under licensed temporary release."  
38.	Mr Thornton's counter submission to this initial view of the court was to submit that the Parole Board appear not to have addressed the sufficiency or otherwise of potential conditions of temporary release on licence from open conditions, under which the claimant's alcohol consumption and his behaviour could be monitored, and in which he would be obliged to notify the authorities of any relationship which he was beginning to develop. That submission again has some force in it.  
39.	I make these observations only for the future consideration of any further Parole Board Panel making decisions in this case.  I reach no final conclusion on the public law challenge on the basis of those submissions because it is unnecessary to do so.
40.	I do emphasise the narrow basis on which I am allowing this challenge.  I am not allowing it on the basis that on the material before the Parole Board Panel the only conclusion which could reasonably have been reached by a Parole Board Panel properly directing itself, taking into account all factors, was one to recommend transfer to open conditions.  I have reached the conclusion I have solely on the basis that I am satisfied that the Parole Board failed in its duty to take into account the entirety of the factors to be put in the balance, when assessing the risk currently posed by the claimant, for the purpose of assessing whether or not it would be safe to recommend a transfer to open conditions.  
41.	For the avoidance of doubt I record there is no basis for any public law challenge to the decision not to direct release.  However, Mr Thornton himself has disavowed such a challenge before me and the Panel itself recorded Mr Thornton's submission that the application of the claimant before it, was for a recommendation for transfer to open conditions.
42.	For all these reasons, the decision of the Parole Board is quashed.
43.	MR JUSTICE KING:  Is there anything more you require? 
44.	MR THORNTON:  I think I am asked to seek an order for costs.  I am required to seek an order for costs.
45.	MR JUSTICE KING:  Costs from whom?  Whose costs? 
46.	MR THORNTON:  Those who instruct me and myself costs.  Would your Lordship allow me a moment please? I seek an order for the reasonable costs incurred by the claimant which would have to be assessed because they are not to be agreed.
47.	MR JUSTICE KING:  Payable by whom?  Are you publicly funded? 
48.	MR THORNTON:  Yes.  We are but under a duty to get them from the defendant so that in fact it would be against the Parole Board.
49.	MR JUSTICE KING:  This is not a world which is easily amenable to normal principles of costs, of that I have no doubt.
50.	MR THORNTON:  Yes.  I am told the Parole Board do normally pay such orders.
51.	MR JUSTICE KING:  I am afraid I need some further submissions on that I am afraid.  My instinct is to simply give you a public funding certificate and to make no other order as to costs.  If you wish to pursue further I will give 48 hours in which to submit written submission to me, that is to say submissions in writing, giving me authority for the proposition that costs follow the same principles as an ordinary civil litigation.  Secondly, in the ordinary course of things costs order are made against the Parole Board.  The Parole Board have not appeared.  They have not sought to oppose this challenge.  They have taken a wholly neutral stance.  You would have to come to the court in any event.
52.	MR THORNTON:  If I may have another moment my Lord.  If I may take your Lordship's invitation of a 48 hour period please? 
53.	MR JUSTICE KING:  What is the date today? 
54.	MR THORNTON:  I think it is the 24th.
55.	MR JUSTICE KING:  I will give you to 4.00 pm on Wednesday to put in those further submissions on costs.  I will simply make a decision on the papers.
56.	MR THORNTON:  Thank you very much.
57.	MR JUSTICE KING:  Thank you for your assistance.
58.	MR THORNTON:  Thank you for your patience today.
59.	MR JUSTICE KING:  It was an interesting case (Pause).
60.	Mr Thornton, the shorthand writer will specifically need those directions that you have given me. I have marked mine all over the place. Could you obtain some clean copies and make sure that they are put with these papers so the shorthand writer may have sight of the document from which to give the judgment.
61.	MR THORNTON:  I will print them off upstairs as I did before.
62.	MR JUSTICE KING:  Thank you.