CO/5311/2004 
Neutral Citation Number: [2005] EWHC 3165 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2 

Wednesday, 16 November 2005
 
B E F O R E:

CLARE MONTGOMERY QC
(Sitting as a Deputy Judge of the High Court 

- - - - - - -

THE QUEEN ON THE APPLICATION OF HALL
(CLAIMANT)
-v- 

FIRST SECRETARY OF STATE
(DEFENDANT) 
 - - - - - - -
Computer-Aided Transcript of the Stenograph Notes of 
Smith Bernal Reporting Limited
190 Fleet Street  London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
 - - - - - - -
MISS F KRAUSE AND MISS K MCMILLAN (instructed by Messrs Nelsons, Nottingham) appeared on behalf of the CLAIMANT
MR P PATEL (instructed by Treasury Solicitors) appeared on behalf of the DEFENDANT
 - - - - - - -
J U D G M E N T
1.	THE DEPUTY JUDGE:  The claimant is a post-tariff mandatory life prisoner.  On 2nd August 2004 and on 6th September 2005 the Secretary of State refused to transfer the claimant to open conditions despite a recommendation by the Parole Board of 4th February 2004 that he should be so transferred.  This application raises four issues:  
1.  The criteria for the review of the decision of the Secretary of State.  
2.  The procedure followed by the Secretary of State, in particular his decision not to remit the matter to the Parole Board in 2005.  
3.  The rationality of the decisions to refuse a transfer to open conditions.  
4.  Whether the application for judicial review is academic.  
The claimant  
2.	The claimant is 68 years old.  Prior to being sentenced to imprisonment for life he had previous convictions, only two of these had a sexual element: one for indecent assault on a nine-year-old and the second for buggery.  In December 1967, following his release from prison on 7th December 1967, he sexually assaulted his then wife and some time later on the night of 12th/13th December 1967 he sexually assaulted and murdered a 16-year-old girl.  He was convicted on 1st April 1968 by the jury of murder and sentenced to life imprisonment.  His tariff expired on 20th December 1987.  
3.	In July 1994 the claimant was recommended by the Parole Board for transfer to open prison conditions.  In October 1994 the Secretary of State accepted the recommendation and the claimant was moved to open conditions.  As a result of concerns expressed by his probation officer and information from the claimant's new wife, he was moved back to closed conditions in November 1994.  There is a question as to the nature and extent of the claimant's conduct in 1994 that provoked the concerns.  However, it appears to have been accepted by the claimant that he had engaged in detailed correspondence with his new wife in which sexually sadistic acts were described.  The claimant has since told Mr Matthews, a psychologist, that these were merely fantasies.  
4.	After receiving representations for the claimant on 20th January 1995 the Parole Board determined that he was not suitable for release or to be detained in open conditions.  A further parole review followed in May 1997.  The Parole Board stated then that work on the sexual component of his offending behaviour was essential.  The claimant was not recommended for release or return to open conditions.  
5.	In January 2000 it was recommended by the Parole Board that the claimant remain in closed conditions and that he undertake a sex offenders treatment programme and have an independent psychological risk assessment.  Later in 2000 the claimant suffered a series of heart attacks which left him physically weakened.  
6.	In 2001 the claimant's psychological state was considered by Mr Matthews, a psychologist, who concluded that he was at high risk of committing a further serious sexual offence.  Mr Matthews recommended the claimant should complete the sex offenders treatment programme.  There is a question as to the use by Mr Matthews of a risk matrix 2000 but his view is not wholly dependent upon the matrix that he used.  
7.	An independent review by Mr Carter, another psychologist, concluded that the claimant was a medium risk of committing serious sexual offences and also recommended that he complete the sex offenders treatment programme, subject to his being fit to undertake it.  
8.	In 2002 Dr Pratt, instructed by the claimant's solicitors, completed an independent psychological report.  He drew attention to the fact that the claimant had now formed an intense relationship with a woman who I shall refer to as S and that the existence of this relationship had a significant effect in reducing the risk of the claimant reoffending.  Dr Pratt also recorded that S's relationship with the claimant would be very important in helping to secure full and proper supervision on release or in open conditions.  Dr Pratt concluded that it was safe for the claimant to move to open conditions as he was not at risk of reoffending.  
9.	In 2003, Dr Faiz, a medical doctor, concluded that the claimant was not fit to undertake a sex offenders treatment programme but that he could undertake one to one psychology sessions to deal with the sexual aspect of his offending.  It is common ground that no such work has been done by the claimant since 1994.  
10.	On 4th February 2004 the Parole Board considered the claimant's case and heard evidence from the claimant, S and Dr Pratt.  Dr Pratt's evidence that there was no risk of reoffending was not accepted by the Parole Board but they accepted Dr Pratt's view that the risk had reduced to a level where transfer to open conditions was appropriate.  The Panel regarded the relationship between the claimant and S as an essential feature of the case.  The Panel had been informed by Mr Taylor, a prison officer, about concerns relating to contact between the claimant and children in possible breach of restrictions imposed upon him, but the Parole Board observed in its recommendation letter that the claimant should be quite clear about the restrictions on him.  
11.	On 30th April 2004 Mr Taylor completed a security report on contacts involving the claimant that were said to be in breach of the restrictions placed on him ("the security report").  The report detailed correspondence and telephone calls, including contacts with children after the Parole Board decision.  One additional feature revealed in the security report was that the claimant appeared to be in telephone contact with two different women (not S) who I shall refer to as A and B, with whom he appeared to be planning to live after his release and to whom he expressed his love.  
12.	On 2nd August 2004 the Secretary of State, having considered the Parole Board recommendation and the security report, decided not to transfer the claimant to open conditions ("the first decision").  He said: 
"The Secretary of State has noted, in addition to the papers considered by the Parole Board, the comments of the panel in reaching their decision.  He notes that the Panel accepts that you present an unacceptable risk for release but that you should be transferred to open conditions.  Although the majority of the report writers do not support your progression to open conditions, the Secretary of State notes the view of your External Probation Officer who considers that it would be the appropriate to test your risk in semi-open conditions and allow for monitoring of your relationship with S.  
... 
However, since the last Parole Board review of your case [that is the review in 2002], the Secretary of State is aware you have not sought to address areas of identified risk in your case and that concerns have been expressed by staff with regard to your risk of sexual reoffending, attitude towards women, relationships and fantasies.  You have failed to engage in any relevant work to address these risk areas and there are outstanding treatment needs arising out of your lack of insight into your offending which need to be addressed before you could safely transfer to open conditions.  In particular, you would benefit from undertaking motivational work to assist in your progression towards eventual release and be assessed for cognitive behavioural programmes such as the Enhanced Thinking Skills programme.  You also need to undertake work to explore your sexual offending and fantasies and develope appropriate relapse prevention strategies.  As a matter of course, an in-depth psychological assessment should be made available to the next panel.  
For all the reasons outlined above, the Secretary of State is not prepared to accept the Parole Board's advice that you be transferred to open conditions."  
13.	On 29th October 2004 the claimant applied for permission to seek judicial review of the first decision.  Permission was granted on 6th January 2005.  On 8th June 2005 Treasury Solicitors acting for the Secretary of State wrote to the claimant's solicitors disclosing the security report.  The claimant had not previously been aware that the report had been before the Secretary of State and considered by him in reaching the first decision.  The document disclosed to the claimant contained redacted descriptions of the correspondence and redacted transcriptions of selected telephone calls, including the calls with the women A and B.  
14.	On 21st and 24th June 2005 the claimant's solicitors made representations on behalf of the claimant.  They did not ask for the claimant's case to be considered by the Parole Board.  They asked instead that the Secretary of State should reconsider his decision.  
15.	On 8th September 2005 the Secretary of State, having considered the representations, maintained his decision not to move the claimant to open conditions ("the second decision").  The decision letter contained the following:  
"In August 2004 the Secretary of State noted that your behaviour was good and that you derived benefit from the support of [S].  However, the Secretary of State also noted that the identified areas of concern: the risk of sexual reoffending; attitudes towards women; relationships; fantasies and lack of insight into his offending, highlighted at your previous review, remained un-addressed.  The Secretary of State is concerned that some 12 months later the work to reduce those risk areas still remains outstanding.  He notes that you would benefit from undertaking motivational work to assist your progress towards release or open conditions, assessment for cognitive behavioural programmes and exploration of your sexual offending and fantasies.  
The Secretary of State is also aware of concerns regarding your attitude and behaviour towards women and children in particular, which was the subject of additional material disclosed by the Secretary of State and your recent representations.  
The Secretary of State notes that you assert that you were not identified as meeting the criteria of Chapter 1 of PSO 4400 [that is the Home Office guideline which contains restrictions on contacts between prisoners and young persons] until after you had been at the establishment for nine months (ie Febraury 2004).  However, paperwork covering this was completed on 23rd May 2003, just days after your reception.  On 23rd May 2003, you also signed that you required no visits from children and provided 20 telephone contact numbers, under strong protest, on 24th May 2003.  Further, there are entries in the material which post-date February 2004 (ie after the date on which, by your own admission, you were aware that you met the criteria in Chapter 1 of PS0 4400) [this also postdates the Parole Board decision].  In addition, the Secretary of State notes that in the recent representations made on your behalf by your solicitors ... it is suggested that [S] has 'spent an enormous amount of time over the last two years contacting the Prison Governor ... to try and receive some clarification as to the criteria'.  It would seem odd for her to go to that effort if you were unaware that you had been identified as meeting the criteria.  It is therefore the view of the Secretary of State that you were aware of the restrictions in PSO 4400 at the time during which these matters, which are referred to in the additional material, took place.  
Furthermore, it is of concern that you have written to women other than [S] expressing a desire on your release to go and live with them and to take care of them and their children.  The Secretary of State notes your explanation that these expressions are 'jokes' made during telephone conversations with long-term friends and are made to cheer up the individuals concerned.  The Secretary of State does not accept the explanation.  It is clear that you have expressed such desires in letters, which you have written to such individuals.  Further, there is no indication in the material that the references made are 'jokes'.  This is concerning material as it was part of your representations seeking your release and/or a move to open conditions that the structure and support which [S] would provide on release would reduce your risk to an acceptable level.  
The Secretary of State notes your other explanations.  He is not in a position to accept or dispute them at this time.  
Nevertheless, given the matters set out above, the Secretary of State remains of the view that your risk is unacceptably high for a transfer to open conditions."  
1.  The criteria for the review  
16.	In Daley v Home Secretary [2001] 2 AC 532 the House of Lords held that a doctrine of proportionality must be applied to the review of decisions affecting prisoners where the challenge is based on the provisions of the Human Rights Act.  Miss Krause accepts that the proportionality approach described in Daley is not required in this case since she is not able to argue that Convention rights are at stake.  In my judgment she is right to make that concession.  A Parole Board decision in relation to a move to open conditions is akin to a decision in relation to security classifications which do not attract the protection of Article 5(4) of the European Convention on Human Rights -- see Williams v Secretary of State for the Home Department [2002] 1 WLR 2264.  
17.	Nevertheless, Miss Krause submits that because the decision whether to move the claimant to open conditions is a potentially significant, if not decisive, prelude to a decision on release, the review must be of greater than normal intensity since the liberty of a subject is potentially at stake.  
18.	Mr Patel for the Secretary of State argues that there is no requirement to apply anything other than ordinary Wednesbury principles, although he does accept that in practical terms a decision on a move to open conditions may play a vital role in future decisions on release.  
19.	In my judgment, as Lord Steyn pointed out in Daley at 548, the intensity of the review in public law cases will always depend on the subject matter at hand.  Given that the liberty of the claimant is liable to be directly affected by a decision on a move to open conditions, the court should be prepared to scrutinise with particular care the decision of the Secretary of State to ensure that his decisions are taken on a sound, rational and lawful basis.  It is nevertheless not appropriate to characterise this approach as "super Wednesbury".  The test remains the conventional Wednesbury test but one which acknowledges the truth of the dictum in Daley that "in law context is everything" and takes into account what is at stake for the claimant and the public at large.  
2.  The procedure  
20.	Miss Krause submits that the Secretary of State should have consulted the Parole Board before taking the second decision.  She states that it is the policy of the Secretary of State to consult the Parole Board in circumstances such as these.  Mr Patel submits there is no such policy.  The Parole Board need only be consulted when fairness requires it.  
21.	It is common ground that absent an established policy or a case in which the dictates of fairness demand it, there is no legal obligation on the Secretary of State to consult the Parole Board in cases such as this.  I have seen no evidence to support Miss Krause's contention that there is an established policy of consultation.  In the absence of any evidence I cannot assume that there is such a policy and I cannot therefore be satisfied that the Secretary of State was under an obligation, by virtue of any policy, to consult the Parole Board before taking the second decision.  
22.	The issue is therefore whether the requirements of fairness demanded that there should be a consultation.  The need for consultation with the Parole Board must turn on, amongst other factors, the nature and extent of the relevant material to be considered.  In particular: 
1.  The impact the material may have on the claimant's case is relevant.  Is it material that might lead to a decision on release or does it go to some other issue?  
2.  The practicability of dealing with material in written form is also relevant.  
3.  The length required for the review and the period before the next Parole Board review may also be relevant.  
23.	Applying these factors to the claimant's case it is clear that the second decision focussed on a narrow category of documentary material, namely the security report on which the claimant could make representations in writing.  These representations and the material could be assessed fairly without the need for a Parole Board hearing.  Further, the claimant did not suggest that a Parole Board hearing was necessary, indeed he specifically invited the Secretary of State to reconsider the matter himself.  Thirdly, the issue raised in the security report will be considered in the round when the claimant's case is again before the Parole Board.  The claimant's case is ready to be reviewed subject to any representations and evidence the claimant may wish to present.  The process of further review by the Parole Board has in fact been stayed at the claimant's request pending the outcome of the application for judicial review.  But for this stay it is likely the matter would have been considered in the round by the Parole Board.  Additionally, the material did not on any view affect the outcome of the claimant's representations in favour of his release or a move to open conditions.  At best the material was neutral; at worst it damaged his application.  Finally, in my judgment, it is a fair point that it would be administratively cumbersome for the Secretary of State to be required to refer for consideration issues such as this arising in the intervals between Parole Board reviews.  
24.	It follows that in my judgment the procedure adopted by the Secretary of State before reaching the second decision was a fair and reasonable one and the challenge on to the procedure adopted accordingly fails.  
3.  The rationality of the decisions  
25.	Miss Krause submits that there was no basis on which the Secretary of State could rationally disregard the views of Dr Pratt, the claimant's personal officer and the Parole Board.  In my judgment the Secretary of State did not irrationally disregard those views.  Instead it is clear from  the decision letters that he took those views into account but nevertheless gave greater weight to other evidence.  The other evidence included the evidence of the psychologist, the views of the psychiatrist and other prison and probation officers, as well as the evidence in the security report and the inferences that might legitimately be drawn from that material.  In my judgment it was legitimate for the Secretary of State to have concluded that (1) in the absence of effective treatment the claimant presented a serious risk that he would commit serious sexual offences if moved to open conditions; (2) the relationship with S could not necessarily be relied upon as reducing that risk, given the material in the security report which provided substantial grounds for doubt as to the claimant's commitment to that relationship; (3) the claimant could not be necessarily relied upon to abide by conditions attaching to any release or open conditions, given the evidence of breach of restrictions committed by him even after the Parole Board recommendation letter specifically warned the claimant of the importance of abiding by the restrictions.  
26.	It is plain in the present case that the Secretary of State gave careful consideration to the evidence.  Even with the most anxious scrutiny it is impossible, in my judgment, to conclude that the first or second decision was irrational.  
4.  Is the application for judicial review academic?  
27.	Mr Patel submits that since the claim in the judicial review proceedings was for a re-determination by the Secretary of State, the second decision has provided that re-determination and the application for judicial review is academic.  
28.	Despite the apparently attractive logic of Mr Patel's submissions, it ignores the fact the claimant's case was that the reasoning underlying all of the Secretary of State's decision-making in this case was irrational and flawed.  His claim was not merely for a reconsideration but for a rational reconsideration.  In my judgment the claimant was entitled to pursue the application since, if the application was well-founded, the administrative court would be in a position to express a view on the underlying reasoning of the Secretary of State which might well have produced a different decision by the Secretary of State.  
29.	Accordingly the application was not academic as the claimant throughout had an interest in the outcome on the merits.  However, in the result, for the reasons I have given, the application for judicial review must fail.  
Are there any further applications?
30.	MR PATEL:  My Lady, no.   
31.	THE DEPUTY JUDGE:  Detailed assessment?  Miss McMillan, I assume you have community legal services funding?  
32.	MISS MCMILLAN:  Yes. I am instructed that we may wish to appeal this decision. 
33.	THE DEPUTY JUDGE:  Are you making the application?  
34.	MISS MCMILLAN:  My Lady, yes. 
35.	THE DEPUTY JUDGE:  No.