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IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
THE ADMINISTRATIVE COURT
2017 EWHC 2612 (ADMIN)	
CO/1124/2017	
Royal Courts of Justice
Wednesday, 4th October 2017

Before:

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

B E T W E E N :

	DARREN GREEN	Claimant

-  and -

(1)	THE PAROLE BOARD 
	(2) THE SECRETARY OF STATE FOR JUSTICE 	Defendants

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THE APPLICANT was not present and was not represented.

THE DEFENDANTS were not present and was not represented.

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J U D G M E N T

THE DEPUTY JUDGE:

1	The claimant is a serving prisoner in HMP Grendon.  On 13th July 2012 he pleaded guilty at the Crown Court in Taunton to an offence of wounding with intent contrary to s.18 of the Offences against the Person Act 1861.  He was sentenced to imprisonment for public protection with a minimum term of five years.  On 10th August 2012 the sentence was amended under the slip rule and replaced with a minimum term of three years and six months less 38 days spent on pre‑trial remand.

2	That minimum term expired on 5th December 2015.  On 6th June 2016 the claimant was due to appear before the Parole Board, but the hearing was deferred on the direction of the Parole Board so that a psychological report could be obtained.  On 30th November 2016 the claimant did appear in front of the Parole Board at an oral hearing to consider his release or removal to an open prison.  The Parole Board informed the claimant by letter dated 5th December 2016 that they would not order his release and directed that he continue to be confined.  Further, they did not recommend that he be transferred to open conditions.  On 23rd December 2016 the claimant was informed by letter from the National Offender Management Service that his review period had been set at 18 months.

3	The claimant now seeks judicial review of the decision of the first defendant not to recommend the claimant for transfer to open conditions and of the decision by the Secretary of State for Justice (the second defendant) to set a period of 18 months before the claimant's next parole review.

4	In relation to the decision by the Parole Board not to transfer the claimant to open conditions, the law is as follows.  In April 2015 the Secretary of State for Justice issued directions under the power in the Criminal Justice Act 2003 s.239(6) relating to the transfer of indeterminate‑sentence prisoners to open conditions.  The directions provided that a move to open conditions should be based on a balanced assessment of risk and benefits.  They specify that 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 ISP has made sufficient progress during the sentence in addressing and reducing risk to a level consistent with protecting the public from harm, in circumstances where the ISP in open conditions may be in the community, unsupervised, under licensed temporary release;

(b) the extent to which the ISP is likely to comply with the conditions of any such form of temporary release (should the authorities in the open prison assess him as suitable for temporary release);

(c) the extent to which the ISP is considered trustworthy enough not to abscond; and 

(d) the extent to which the ISP is likely to derive benefit from being able to address areas of concern and to be tested in the open conditions environment such as to suggest that a transfer to open conditions is worthwhile at that stage." 

5	The first defendant's duty to follow these directions has been considered in a number of authorities: R (On the Application of Gordon) v Parole Board [2000] 1 PLR 275, R (On the Application of Hill) v Parole Board [2012] EWHC 809 (Admin), R (Rowe) v Parole Board [2013] EWHC 3838 (Admin).  The clear principle from these cases is that the first defendant is required to undertake a balancing exercise between risk and benefit when assessing suitability for transfer to open conditions, and the failure to do so is an error rendering any decision unlawful.  In Gordon, Smith J said at para.38 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 judgment 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 factor they have taken into account”.  In Rowe, King J said at para.60:

"The failure to balance those benefits against the Board's assessment of the extent to which the claimant had made sufficient progress during sentence in addressing and reducing risk to a level consistent with protecting the public from harm is, in my judgment, fatal to the legitimacy of this decision."

6	The claimant has made the following submissions.  Mr Hutcheon submitted that the first defendant erred in law by failing to follow the directions, by not carrying out the balancing exercise between risk and benefit.  He said that the first defendant had the benefit of evidence from three experts, all of whom recommended that the claimant be transferred to open conditions, acknowledging the level of risk and listing a number of benefits.  Mary Haley provided a comprehensive report entitled "Democratic Therapeutic Community Report", which addressed the various risks relating to anti‑social attitudes, coping and problem solving, relationship skills and emotional management, and balanced the benefits of moving to open conditions.  She concluded: "He is now ready for open conditions and it would be a positive move for him to be transferred when possible." Sara Hillier of the National Probation Service reported:

"... Mr Green remains ready for progression from closed conditions to open conditions.  This will provide Mr Green with the opportunity to consolidate his learning in a less secure environment.  By transferring to open conditions, Mr Green will be able to undertake ROTL's and have a controlled reintegration back into the community ... Mr Green will also be able to establish what support in terms of alcohol support and emotional support is available to him, looking at how [to access it].  It will also allow him to look at where he would like to resettle in more detail, beginning to found out what accommodation is available and develop a very robust resettlement plan in conjunction with me.  Whilst at this time I am not able to recommend release, in my assessment Mr Green is ready for progression to open conditions." 

Sarah Taylor, a forensic psychologist, reported:

"It is my opinion that a period in open conditions will be helpful for Mr. Green to consolidate his skills and learning in order to take the first steps towards building a life in the community.  In addition to this, it will give him the opportunity to practise his new skills in a less supported and structured environment where he has more freedom but still has some supervision and for those managing him to assess how well he is able to manage himself when interacting with the wider community."

7	Mr Hutcheon submitted that the first defendant is entitled to form their own view and is not obliged to follow the recommendation of these experts.  However, before deciding not to transfer the claimant to open conditions it must undertake a balancing exercise specifying what the risks and the benefits are and explaining why the risks outweigh the benefits.  In this case, he said, they failed to do this.  The letter explaining their decision dated 5th December 2016 started by referring to a balancing exercise but then concentrated on the risk.  They were clearly focused on whether or not to release the claimant and paid scant attention to the different exercise of assessing suitability for transfer to open conditions.

8	The second decision was by the Secretary of State to set a period of 18 months for review.  The law relating to this is that when ISPs reach their tariff their continued detention must be reviewed at regular intervals.  In Betteridge v United Kingdom [2013] ECHR 1497 the European Court of Human Rights determined that those held in detention under a sentence of IPP must be reviewed at regular intervals as their detention is justified on the basis of considerations of dangerousness which are susceptible to change over time.  Failure to review regularly would be a breach of ECHR Art. 5(4).  In R (Loch) v Secretary of State for Justice [2008] EWHC 2485 (Admin), Stadlen J said at paragraph 44: 

"44. The additional guidance to be derived from the judgment of the Court of Appeal in Murray [that is Murray v Parole Board [2004] PLR 175] would thus appear to be that in considering whether in any particular case the gap between reviews is reasonable and thus compliant with the Art 5(4) requirement for a speedy decision, while there is no formal presumption that an interval of more than a year is unreasonable and non‑compliant, the court should approach the question on the basis that where there is an interval of more than a year it is generally for the decision‑maker to show by reference to the particular facts of the case that it is reasonable and thus compliant with Art.5(4)." 

9	Mr Hutcheon on behalf of the claimant submitted that 18 months was much longer than the review period needed to be in the context of the progress made by and the reports made on the claimant.  In any event he submitted that the second defendant did not discharge the burden upon them to show by reference to any particular facts that 18 months was reasonable and thus compliant with Art.5(4).  The second defendant's letter dated 23rd December 2016 listed matters to be addressed for the next review but did not explain why they should take more than 12 months.

10	In my judgment, the first defendant's decision letter dated 5th December 2016 does not demonstrate that the panel carried out the balancing exercise required when considering whether the claimant was suitable for open conditions.  There is passing reference at the start of the letter to the requirement for a balancing exercise (that is para.2) but the thrust of the letter deals with the risk associated with release.  There is no discussion of the benefits of transfer to open conditions and the decision not to transfer is tagged on the end of para.8.7 dealing with the decision not to release.

11	In relation to the second defendant, they indicated on 1st August 2017 after permission for judicial review was granted that they did not intend to contest these proceedings.  However, it is clear that in their letter dated 23rd December 2016 setting a further review at 18 months, they did not show by reference to the particular facts of the case that it was reasonable and thus compliant with Art.5(4).

12	For the reasons I have given, I make the following orders.  The first defendant's decision to refuse to transfer the claimant to open conditions is quashed.  The request to be transferred to open conditions is remitted for fresh consideration by the Parole Board.  Secondly, the Parole Board is to hold a further oral hearing to consider transfer to open conditions by no later than 15th December 2017.  Finally, the second defendant's decision that a further hearing should take place in 18 months falls away because of the orders above.  Nevertheless, in the context of this case 18 months was unreasonable.

13	I finally turn to costs.  It is established law that costs should not be awarded against an inferior court or tribunal except whether there was a flagrant instance of improper behaviour or when the inferior court or tribunal unreasonably declined or neglected to sign a consent order disposing of the proceedings, and that is per Brooke LJ in Davis v HM Deputy Coroner for Birmingham [2004] EWCA (Civ) 207.

14	Mr Hutcheon submits that in this case the outcome was so clear, particularly after permission was granted, that the first defendant's refusal to sign a consent order was unreasonable.  I disagree.  The Parole Board's litigation strategy is to adopt a neutral position and not to actively defend a matter should it proceed to judicial review.  That is a perfectly proper position.  It would be perverse to order costs solely on the basis that the claimant submits that he has a strong case.  I therefore make no order for costs against the first defendant.  Costs are awarded against the second defendant insofar as they relate to the second defendant, and there is to be a detailed assessment of the claimant's legal aid costs.

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This judgment has been approved by the Judge.