Neutral Citation Number: [2017] EWHC 295 (Admin)
Case No: CO/4627/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 21/02/2017

Before:

UPPER TRIBUNAL JUDGE KATE MARKUS QC
(SITTING AS A DEPUTY HIGH COURT JUDGE)
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Between:

	R (on the application of NADINE WALLACE)	Claimant	
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	PAROLE BOARD FOR ENGLAND AND WALES	Respondent	

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Mr Ian Brownhill (instructed by Bhatt Murphy) for the Claimant
The Respondent did not appear and was not represented

Hearing date: 7 February 2017
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Judgment Approved
Upper Tribunal Judge Markus QC:
Introduction
1.	This is a claim for judicial review of a decision of the Parole Board dated 13 June 2016 in which it refused to recommend that the Claimant be transferred from closed to open conditions.  Permission to proceed with the claim was given by Neil Cameron QC, sitting as a Deputy High Court Judge, on 17 October 2016.  The Claimant had also sought to challenge the Parole Board’s decision not to direct her release, but the Deputy High Court Judge refused her permission to do so.
2.	In accordance with its litigation strategy, the Parole Board has not defended the claim, although in its Acknowledgment of Service it submitted that the claim form had not been filed promptly or within 3 months of the decision.  The Deputy High Court Judge rejected that submission.
Factual background
3.	The Claimant is a prisoner serving an automatic life sentence imposed at Kingston Crown Court on 30 August 2000 when, at the age of 19, she was convicted of causing grievous bodily harm with intent.  The tariff was set at three years and expired on 3 August 2003.  She was initially released from prison on 29 August 2003 but was recalled on 9 June 2004.  Since then she has been released and recalled on 5 occasions.
4.	The index offence was committed at a night club.  The Claimant was intoxicated, having consumed a great deal of alcohol and used ecstasy.  Her partner had felt unwell and collapsed.  The Claimant believed that the victim had spiked her partner’s drink and attacked him with a broken bottle causing very serious injuries.  The Claimant pleaded guilty to the offence and admitted that she had drunk too much and lashed out in anger.
5.	The circumstances giving rise to the Claimant’s recall to prison following each release have included non-compliance with hostel rules and other licence conditions, substance misuse and poor mental health.  The most recent release was on 23 November 2015 but she was recalled to prison on 30 November after she failed to return to her hostel having taken Valium and alcohol at a friend’s house.  Her case was referred by the Secretary of State for Justice to the Parole Board on 14 December 2015 to consider her suitability for release and, alternatively, to advise on her suitability for a move to open conditions, paying due regard to directions issued by the Secretary of State.  A panel of the Parole Board convened on 25 May 2016 and promulgated its decision on 13 June 2016.
6.	The Parole Board was provided with a substantial dossier of reports and other documents, including reports prepared since the Claimant’s latest recall.  The Claimant’s caseworker, Ms Wright, noted that it was difficult to assess the Claimant’s commitment to remaining drug free as that had led to recall.  She recommended that the Claimant should build on progress already made regarding substance abuse, and complete more intensive training such as RAPt (Rehabilitation for Addicted Prisoner’s Trust programme).  That was available in one closed prison, HMP Send.  Ms Wright continued
“Should the board not direct closed conditions it would be my recommendation that Ms Wallace is tested in open conditions which would allow her to attend local recovery appointments to prove commitment and engagement and work towards funding in a rehab facility, as it was highlighted that Ms Wallace would need to provide engagement whilst in the community in order to secure funding. This would allow Ms Wallace to have home ROTL to see her family and continue a supportive relationship with them.”
7.	There was also a report from the Claimant’s offender manager, Ms King, who did not recommend release and said:
“I have considered two options in considering how Ms Wallace can evidence a reduction in risk associated with her drug and alcohol misuse and in her ability to comply with future Licence Conditions.  The first being her move to HMP Send where she can access Rapt and their Therapeutic Community and PIPE Unit. I understand from her Offender Supervisor … that this does present an opportunity for a less secure setting.  The second being a move to HMP Askham Grance which is an Open Prison where Ms Wallace would engage fully with Drug and Alcohol Services Providing a route for a more positive outcome for a potential Residential Placement place.
I have considered how this could be achieved in the community but because Ms Wallace has not previously engaged fully with drug and alcohol services in the community she was declined for residential rehabilitation. I am very keen to ensure Ms Wallace has a route forward and that we do not simply have a revolving door scenario.”

8.	Later in the report Ms King said that she supported a move to either HMP Send or HMP Askham Grange, and that both offered a route forward. 
9.	Both of the professional witnesses gave oral evidence at the Parole Board hearing.
10.	In the Introduction to its decision letter the Parole Board explained its role as follows:
“The Parole Board is empowered to direct your release if it is satisfied that it is no longer necessary for the protection of the public that you be confined.  The panel is also required to consider your suitability for transfer to open conditions and will make this recommendation where it finds that your risks are low enough to be safely managed in conditions of lower security where you would at times be in the community unsupervised.”
11.	The decision letter considered the Claimant’s case under a number of headings: analysis of offending; risk factors; evidence of change since last review and/or circumstances leading to recall and progress in custody; assessment of current risk; evaluation of effectiveness of plans to manage risk; conclusion and decision.  The decision letter was detailed and I refer below only to a few parts of it.
12.	The panel found that the Claimant’s key active risk factors were persistent substance misuse, impulsivity, attitude towards compliance and heightened emotional responses.  These all played a part in her offending and on each return to prison, and had been evident at times in prison.  The panel considered that the risk factors had contributed to the Claimant being “on a clearly identified pathway to an increased risk of violence which thus far has fortunately been interrupted by recall”.
13.	The panel referred to the reports of the two professionals from which I have cited above, as follows:
“Your offender manager’s report to the panel was unclear in its recommendation but she told the panel in her oral evidence that in her view, your risks were low enough for open conditions but not for re-release on licence because of your unstable and unpredictable behaviour.  She identified your emotional self-management and substance misuse as enduring risk factors which she thought could be addressed and managed in open conditions by the access you could have to counselling and mental health support during periods of temporary licence.  The panel found this argument unconvincing. These areas of risk are core risk factors which have not been manageable in a number of highly supported placements. The panel was not convinced that the ability to access counselling and mental health support from open conditions would be sufficient to manage your risks.  Ms King did not believe you had ever spent long enough in the community to properly test your ability to manage your own risks of violence and said that you would benefit from open conditions because of the chance to reflect on previous failures on licence and to gradually build and develop a more realistic and fully tested release plan. The panel noted you have had 3 previous periods in open conditions and these have not led to a successful long term outcome. 
…Ms Wright also supported your transfer to open conditions where she felt you posed an acceptable level of risk because of the potential sanction of being returned to closed conditions.  She could not explain however why this would be effective on this occasion given your long history of disregarding such sanctions.  Neither of the professional witnesses were able to rule out a risk of abscond and noted your previous history in relation to non-compliance...”
14.	After setting out its assessment of the Claimant’s current risk and the effectiveness of possible risk management plans, the panel set out its conclusion and decision.  It found that the Claimant had not addressed the core risk factors and that her risks were not amenable to supervision.  In relation to release, the panel outlined the relevant considerations including the gravity of the index offence and its causes, the potential for further violence which meant that the Claimant was assessed as remaining at high potential risk of harm to others, that there was significant doubt as to the progress she was reported to have made in relation to key or core areas of risk, that her behaviour and her evidence at the hearing indicated poor level of insight into the impact of substance abuse and her emotional well-being on her behaviour, and that the panel believed she needed to undertake further work to address those core and persistent risks.  It concluded 
“Until this has been achieved, the panel was satisfied that you could not be safely managed in the community and that for the protection of the public should remain in prison.  It did not direct release.”
15.	The panel then turned to open conditions:
“The panel also gave very careful consideration to your suitability for open conditions which was recommended by both of the professional witnesses albeit with some reservations.  You have a poor record in open conditions although the panel noted that you have not been in a category D environment for several years.  The current recommendations were predicated on the view that you would be able to access support for both your emotional well-being and your substance misuse and that you would be in a better position therefore to gradually rebuild your life in the community.  The panel struggled with this; it relies on you having sufficient insight and motivation into your risks to be able to effectively address them, and also upon you taking the necessary responsibility to engage with the relevant support services.  The panel did not have evidence of either of these things and was particularly concerned about the ease with which you would be able to obtain alcohol and/or drugs in the open estate.
The panel concluded that because of the evidence that core risks underpinning your risks of violence and serious harm remain active, that these could not be reliably managed in open conditions and should be re-examined and addressed in closed conditions first.  It therefore did not recommend a transfer to open conditions.”
Legal framework
16.	The Secretary of State’s referral of the Claimant’s case to the Parole Board to consider whether to direct her release was made under section 32(5) of the Crime (Sentences) Act 1997.  The additional role of the Board of providing advice as to transfer to open conditions is not a statutory one.  As observed by HHJ Stephen Davies, sitting as a Judge of the High Court, in R (D’Cunha) v The Parole Board [2011] EWHC 128 (Admin) at [51], the practice of referring that question to the Board appears to be a policy decision of the Secretary of State. 
17.	The Secretary of State has provided directions to the Parole Board regarding its advice as to transfer to open conditions.  They include the following:
“Introduction
1. A period in open conditions can in certain circumstances be beneficial for those indeterminate sentence prisoners (ISPs) who are eligible to be considered for such a transfer. 
2.	Open conditions can be particularly beneficial for such ISPs, where they have spent a long time in custody, as it gives them the opportunity to be considered for resettlement leave (although there is no automatic entitlement to such leave and any decision to grant such leave will depend upon a careful assessment of risk). It is not necessary in every case, however, for an offender to spend time in open conditions in order for the Parole Board to direct their release. 
3. 	The main facilities, interventions, and resources for addressing and reducing core risk factors exist principally in the closed prison estate. 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.
…
5. 	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 ISP 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
6. 	Before recommending the transfer of an ISP to open conditions, the Parole Board must consider:-
•	all information before it, including any written or oral evidence obtained by the Board; and
•	each case on its individual merits without discrimination on any grounds.
7. 	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.”
18.	For the reasons explained by HHJ Stephen Davies in D’Cunha at [57] – [60], the Board is required to provide its advice in accordance with the directions and, in giving advice on a transfer to open conditions, the Parole Board is bound to follow those directions and in any event it is proper for the Board to make a balanced assessment of the risks and benefits.
19.	The Parole Board has provided guidance on the conduct of oral hearings including, at Annex G, writing reasons.  This provides:
“Where the panel considers both release and in the alternative a recommendation for open conditions, it must be made clear in the decision letter that the panel applied the test for release and SEPARATELY conducted a balancing exercise in relation to suitability for open conditions.
There must be express reference to the balancing exercise in the decision. It is not enough for the panel to refer to the need to have regard to the directions of the Secretary of State or note the support the prisoner had from professionals for transfer (which if analysed is often likely to contain references to the benefits which could be directly derived from transfer). The panel must expressly state what factors which go towards benefit were taken into account.”
The Claimant’s submissions
20.	Mr Brownhill advances two linked grounds.  First, he says that it is evident from the opening passages of the Parole Board’s decision letter that it failed to apply the correct test regarding its advice on open conditions, in that it directed itself only to considerations of risk and did not mention the balancing risk and benefits.  Second, he says that the Board did not make an error merely in the way in which the decision was expressed; it failed to adopt the correct approach to the question of a move to open conditions in that it failed to identify or consider the benefits of a move to open conditions.  Mr Brownhill submits that the benefits of such a move were obvious and were explained by the two professional witnesses: to maximise the likelihood of successful release in the future, to provide an opportunity to secure a potential residential place, and to provide an opportunity for testing in the community with support.  He submits that the panel failed to address these and instead focussed entirely on risk.
Analysis
21.	The role of the court in a case such as this was summarised by Smith J (as she then was) in R (Gordon) v Parole Board on 7 November 2000, as follows:
“31. 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.”
22.	Mr Brownhill has drawn my attention to a number of authorities in which the High Court has quashed a decision of the Parole Board for failing to balance risk and benefit when deciding not to advise a move to open conditions.  One such case is Gordon, where Smith J said that the requirement to carry out the balancing exercise 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.”  She quashed the decision in that case because it did not appear than any real balancing had been done.
23.	In D’Cunha (above), HHJ Stephen Davies quashed a decision of the Parole Board not to recommend a transfer to open conditions because it had failed to consider that question separate from that of release, applying a balanced assessment and having particular regard to the factors which apply specifically to open conditions.  The panel had not specifically considered whether the applicant 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, those being 3 of the main factors which the panel was required by the Secretary of State’s directions to take into account.  In addition the panel had not considered the availability of recommended offending behaviour work in open conditions and whether this would satisfy the risk reduction aspect. 
24.	Finally Mr Brownhill referred to R (Davies) v Parole Board, an unreported decision of Collins J made on 14 May 2015 for which there is no available transcript.  The Lawtel summary sets out that the Board’s decision was quashed because it had wholly failed to deal with the benefit of open conditions.
25.	Mr Brownhill relies on these authorities as showing that the Board’s advice as to open conditions is to be considered separately from the question of release, that it must be plain from the decision that it has balanced risk against benefit, and that it should state broadly what factors it has taken into account.  I accept these general propositions.  Beyond that I do not consider those cases to be of assistance in deciding this case, they being highly fact specific in their outcomes, save that each of them manifests an unexceptional approach by this court to public law challenges.  The judgments turned on failures by the Parole Board to address relevant factors or adequately to explain its reasoning.  None of them invites a narrow textual analysis nor imposes any particular structure on the Board’s reasoning.  What mattered in each case was whether, in substance, the decision was lawful in the light of all relevant factors including the importance of balancing risk and benefit.
26.	I agree with Mr Brownhill that, in the present case, the Board did not set out the correct test in the introduction to its decision.  It referred only to risk and entirely failed to mention the need to balance risk against benefit.  He is also correct to point out that in the final paragraph of the conclusion (i.e. in the second of the two paragraphs which I have set out at paragraph 15 above), the panel again referred only to risk in explaining why it had not recommended transfer to open conditions.  However it is important not to cite selectively from the decision.  What matters is whether, reading the decision as a whole, the panel carried out the required balancing exercise, took into account relevant considerations and adequately explained its decision.  For reasons which I now explain, it did.
27.	The professional witnesses had identified key benefits to the Claimant of a move to open conditions which were not available if she remained in closed conditions.  Ms King explained that the Claimant could not obtain residential rehabilitation on release without first engaging fully with drug and alcohol services in the community, and she could only do that from open conditions.  As she put it, therefore, being in open conditions would provide “a route for a move positive outcome for a potential Residential Rehabilitation place” and avoid “a revolving door scenario”.  Ms Wright said that in open conditions the Claimant would be able to have temporary home leave in order to see her family and maintain a supportive relationship with them.
28.	In the first of the two concluding paragraphs regarding open conditions the Panel noted that the recommendations for a move to open conditions were predicated on the view that the Claimant would be able to access to support for her emotional wellbeing and for substance misuse and that she would be in a better position to rebuild her life in the community.  This is plainly a reference to the views of Ms King and Ms Wright as to the benefits of open conditions.  In addition in summarising Ms King’s recommendations (see paragraph 13 above) the panel noted that the identified benefits of a move to open conditions included developing a more realistic and fully tested release plan.  In the light of this, I reject Mr Brownhill’s submission that the panel had failed to identify the benefits of a move to open conditions.
29.	Mr Brownhill also says that the panel did not put the benefits in the balance against risks but, instead, it relied solely on risk in deciding not to recommend open conditions.  I reject this.  The panel’s reasoning on open conditions is set out in both of the concluding paragraphs. In the first of those paragraphs, having identified the asserted benefits of a move to open conditions, the panel explained that it “struggled” with these because it did not consider that the Claimant was likely to be able to effectively address her risks or to engage with support services.  Mr Brownhill is wrong to say that the panel was only concerned with risk in this part of the decision.  The panel was explaining its decision that the asserted benefits would not be likely to materialise.  Although in this paragraph the panel did not specifically explain the benefits of the Claimant having contact with her family, it had done so earlier in the decision letter where it acknowledged the importance of family support and said that this benefit was not outweighed by the Claimant’s unwillingness to accept sufficient responsibility while on licence.  That illuminates the panel’s concerns about the necessity of the Claimant having “responsibility to engage with the relevant support services”.  Read as a whole, the decision letter leaves no doubt that the panel was not satisfied of the asserted benefit of increased contact with her family while in open conditions.
30.	I also reject Mr Brownhill’s submission that the panel’s expression of concern about access to alcohol or drugs in the open estate reinforces his case that it focussed only on risks.  The concern was relevant to the panel’s assessment of the likely success of the opportunities in open conditions to address substance misuse.
31.	I conclude therefore that in the first of the two paragraphs addressing open conditions, the panel addressed the benefits of such a move and explained that it afforded them little weight.
32.	The panel then turned to risk in the next paragraph.  Its decision that the Claimant’s core risks could not be reliably managed in open conditions had been explained by it in the section of the letter dealing with progress in custody cited at paragraph 13 above.  There was no need to repeat it.
33.	I am satisfied that in substance the panel addressed the remaining key areas required of it by paragraph 7 of the Secretary of State’s directions.  The bulk of the decision letter was dedicated to progress during the sentence and risk.  The panel took into account previous non-compliance and the Claimant’s long history of disregarding sanctions.  Despite not having previously absconded from open conditions, the panel noted that the professional witnesses could not rule out a risk of her absconding.
34.	Finally, the decision is not unlawful solely because the panel did not refer in terms to a balancing exercise in accordance with the Parole Board’s guidance.  Although the Board should follow its own guidance, unless there is a good reason not to do so, it is important to bear in mind that the purpose of the guidance is to assist panels in making and writing their decisions so that they are clear and lawful.  To suggest that, although the reasons satisfactorily address the relevant considerations in substance, the decision should be quashed because the decision letter failed to follow the particular structure or format, elevates form over substance in a way which is unacceptable.  Moreover, in accordance with the guidance, the panel did not merely refer to the professionals’ views supporting transfer but, as I have explained above, it expressly set out the benefits on which those views were based and it stated which factors it took into account in assessing the benefits.
35.	Accordingly this judicial review fails.