Adetoro, R (on the application of) v Secretary of State for Justice

This matter concerns a reference to the Parole Board by the Secretary of State for Justice, made in May 2010, which sought the advice of the Parole Board on whether the Claimant, a category A prisoner, should be transferred to open conditions. As appears in more detail below, the Claimant had received a sentence of life imprisonment in July 2000after being tried and convicted by Douglas Brown J and a jury on an indictment alleging offences of attempted murder, the causing of grievous bodily harm with intent and other offences, after an incident in which members of the public had been subjected to a quite terrifying catalogue of criminal conduct as he sought to evade the attentions of the police. The Parole Board summarised the outcome of his trial in this way

“You were initially charged with 25 offences of attempted murder. After trial during which you accepted the essential facts of the chase which were beyond dispute whilst denying any intention to kill, you were found guilty of three counts of attempted murder and five counts of causing or attempting to cause grievous bodily harm with intent for which you were sentenced to concurrent terms of life imprisonment. You were also convicted of 13 other offences ranging from conspiracy to rob to dangerous driving which attracted concurrent determinate terms between 18 and 2 years. The tariff after allowing for 15 months on remand was fixed at 13 years which expires in July 2013. You have now been in custody for almost 13 years.”

On any view those sentences, passed by a very experienced trial judge, were richly deserved. The Parole Board, after a very full hearing, recommended that he be transferred to open conditions. On 13^th March 2012 the Secretary of State issued a decision letter whereby he accepted that recommendation. However that decision was unwelcome to some within the National Offender Management Service and within HMP Long Lartin, and it was decided that the decision should be rescinded (to use the language adopted by the Secretary of State for Justice) on the grounds that the Secretary of State for Justice considered that

“Having taken into account all of the above the Secretary of State has concluded that the Parole Board’s reasons in support of transfer to open conditions contain a number of important omissions. These omissions are sufficiently serious as to render the basis of the Board’s recommendation as fundamentally flawed. As such, the Secretary of State is not satisfied that you present an acceptable risk to be transferred to open conditions. He therefore rescinds his earlier decision to accept the Parole Board’s recommendation.” (letter of 3^rd April 2012)

The second letter purporting to rescind the earlier decision, refusing to accept the Parole Board recommendation, and refusing to permit the transfer of the Claimant to open conditions, was issued on 3rd April 2012. It is that decision which is under challenge in these proceedings. Permission to apply for judicial review was granted by His Honour Judge Davies on 21^st June 2012.

After the claim had been issued, arguing inter alia that the Secretary of State had provided no evidence to justify the volte face of the second decision, the Secretary of State submitted a witness statement from Mrs Kerry Adams, Deputy Head of Casework at the Public Protection section of the Offender Management and Public Protection Group within the National Offender Management Service (NOMS). Disclosure was also made of what transpired within the Ministry of Justice after that decision was issued. As a result of what was made available, Miss Plimmer applied at the hearing to amend Ground 1 of her claim. I permitted her to do so. All the arguments arose from the material that had been disclosed.

I was assured by Mr Gullick, after I had asked him to take express instructions, that no new material was placed before the Secretary of State for Justice (or those dealing with the decision for him) between the two decision letters.

While there are issues about the second decision relating to its rationality, the adequacy of its reasoning, the application of the Secretary of State for Justice’s own policy and the fairness of the procedure adopted, I also raised concerns about whether the Secretary of State for Justice had any power to reconsider his decision once it had been issued. I asked the parties to make written submissions on the point.

I shall deal with matters as follows

On any view the sentences, passed by a very experienced trial judge, were richly deserved. The description of the offences in the Parole Board letter is as follows

“ 3 Analysis of Offending

On 23rd April 1999 when you were 29 years old you became involved with associates in advanced preparation and planning for an armed robbery which would have involved two handguns and a Kalashnikov sub-machine gun. You were a passenger in a car being driven on the M61with another accomplice in a second car about a mile ahead. The pre planning provided for the possibility of your car being stopped on the motorway and the plan then called for the car ahead to get off the motorway and park in a position to enable you to outrun the police and transfer to the first car. Your driver failed to act as the plan required and stopped for the police as requested. You threatened him with a handgun to start driving away and when he refused you left the car wearing a balaclava and body armour. You shot at the police car hitting a tyre and drove away. What then followed over a distance of 40 miles and a period of about two hours involving armed police vehicles and a helicopter was your decision in the words of the trial Judge to drive and shoot your way out of trouble with ruthless disregard for the life and safety of the police and public. You abandoned your own car to seize another and kidnap its terrified woman driver. You shot at police and members of the public using the handguns and the sub-machine gun. You shot a member of the public in the leg when he said something to you. An oncoming car was shot at and the driver missed dying by only inches. A man waiting for a bus was shot in the leg when you were aiming at a pursuing police car and a cyclist was shot at the top of his leg when you were firing backwards out of the car window at the police. You were by now in the second and much faster car you forced the driver to hand over. The Judge commented that it was truly remarkable that nobody was killed and he described you as highly dangerous and willing to risk the lives of police officers and members of the public so that you might remain at liberty. Your previous convictions all related to theft and robbery. In 1989 you were sentenced to four years detention in a young offenders’ institution for an offence of robbery.”

(I interpose to say that that must refer to 4 years detention, which would in fact have been served in a young offenders’ institution)

“In 1995 you were convicted of conspiracy to steal for which you received a sentence of 8 years imprisonment. You are now 42 years old.”

His lifestyle was described thus in the Parole Board decision at Section 4 “Risk Factors”.

“At the time of the index offences you were on the run from the police, leading a criminal lifestyle and associating with like minded individuals. You were brought up and lived in an area where criminal gang activity was rife and you acknowledge that at times you facilitated criminal activities for those associated with the gang culture whilst denying that you were a major figure in the gang activities. You provided vehicles and on the occasion of the index offences arranged to transport guns and ammunition in preparation for armed robbery in which you were prepared to be involved with alt its attendant risks. The purpose of all your offending was to obtain money. You were aware of the likely consequences of being found in possession of the weapons and other material including balaclavas and body armour for your own protection and you were prepared to go to extreme lengths regardless of the danger to others in your determination to remain free. Your involvement in the criminal culture and your failure to recognise the inevitability of your capture and arrest at the time you were firing at the police demonstrated serious thinking deficits including problem solving and consequential thinking. You lacked insight and victim empathy. Thankfully none of the serious injuries received by your victims were life threatening but this was your and their good fortune and owed nothing to any sense of reason or proportion which was wholly lacking in your attitude and behaviour.

Immediately after your arrest you made threats about escape and boasts about rescue and you were regarded as a high risk offender prepared to stop at nothing to get your own way.”

On any view, when the Parole Board and Secretary of State came to consider his case (whether in terms of release on parole or transfer to open conditions) weight had to be given to his record of offending, known criminal lifestyle, and the extreme danger to which his activities had exposed the public.

He was then held as a category A prisoner. However the Prison Service has kept him as such, and delayed some interventions (a matter referred to critically at the Parole Board hearings). There have been proceedings for judicial review relating to a failure by the Secretary of State to consider downgrading him, and his refusing to hold an oral hearing. HH Judge Raynor QC had stayed those proceedings to await the outcome of the Parole Board hearing. On 30^th August 2012 the judicial review proceedings were withdrawn by consent, the Secretary of State having consented to hold an oral hearing into whether he should retain category A status on 27^th September 2012. The Secretary of State agreed to pay the Claimant’s costs of the proceedings.

I shall consider the legal submissions made to me, and the authorities referred to, in a later section of this judgement. At this stage I will set out the relevant statutory context and refer to the relevant Prison Service Instructions.

It is wise to remember that one of the aims of sentencing, alongside punishment of offenders, deterrence and protection of the public, is the reform and rehabilitation of offenders (now enshrined in s 142 Criminal Justice Act 2000) (CJA 2003) albeit that it was not in force when he was sentenced). Under Chapter 2 of Part 2 of the Crime (Sentences) Act 1997, a person in the Claimant’s position who had served the first part of his sentence, was to be released by the Secretary of State if directed by the Parole Board, who could do so if the Board were satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined. That remains within the current legislative framework- see s 275 CJA 2003.

The role of the Parole Board is now set out in section 239 CJA 2003

“239

The Parole Board

(1)

The Parole Board is to continue to be, by that name, a body corporate and as such is—

(a)

to be constituted in accordance with this Chapter, and

(b)

to have the functions conferred on it by this Chapter in respect of fixed-term prisoners and by Chapter 2 of Part 2 of the Crime (Sentences) Act 1997 (c. 43) (in this Chapter referred to as “the 1997 Act”) in respect of life prisoners within the meaning of that Chapter.

(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 the early release or recall of prisoners.

(3)

The Board must, in dealing with cases as respects which it makes recommendations under this Chapter or under Chapter 2 of Part 2 of the 1997 Act, consider—

(a)

any documents given to it by the Secretary of State, and

(b)

any other oral or written information obtained by it;

and if in any particular case the Board thinks it necessary to interview the person to whom the case relates before reaching a decision, the Board may authorise one of its members to interview him and must consider the report of the interview made by that member.

(4)

The Board must deal with cases as respects which it gives directions under this Chapter or under Chapter 2 of Part 2 of the 1997 Act on consideration of all such evidence as may be adduced before it.

(5)

…………………………………………………..

(6)

The Secretary of State may also give to the Board directions as to the matters to be taken into account by it in discharging any functions under this Chapter or under Chapter 2 of Part 2 of the 1997 Act; and in giving any such directions the Secretary of State must have regard to—

(a)

the need to protect the public from serious harm from offenders, and

(b)

the desirability of preventing the commission by them of further offences and of securing their rehabilitation.

(7)

………………………….”

The Secretary of State for Justice has issued directions to the Parole Board under section 32(6) of the Criminal Justice Act 1991. It was agreed before me that the relevant directions were issued in August 2004. The first part relates to

The second part includes this passage

“A period in open conditions is essential for most life sentence prisoners (lifer's) (sic). 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.”

It follows that the normal practice is that before a prisoner is released, he must have spent time in open conditions. It is the practice of the Secretary of State to refer the question of transfer to open conditions to the Parole Board to receive its advice. However not all cases are referred, and instructions have been issued by the National Offender Management Service relating to “pre-tariff sift reviews ” (PSI 33/2009) whereby a Sentencing Planning and Review Meeting (“SPM”) should consider whether to recommend to the Public Protection Casework Section whether to refer a prisoner’s case to the Parole Board for what it calls a “ pre-tariff review. ” That policy is said to apply “only to indeterminate sentenced prisoners who are approaching their first Parole Board review where the consideration is for transfer to open conditions only. This instruction does not apply to post-tariff reviews.”

As will become apparent, a decision was made to refer the question of this prisoner’s transfer to open conditions before the SPM had taken place. However Mr Gullick at no time suggested that the referral was not properly made to the Parole Board.

The directions to the Parole Board state

“Introduction

1.

A period in open conditions is essential for most life sentence prisoners (lifer's) (sic). 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.  Lifer's (sic) 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 risk and benefits. However, the Parole Boards emphasis should be on the risk reduction aspect and, in particular, on the need for the lifer to have made significant progress in changing his/her attitudes and tackling behavioural problems in closed conditions, without which a move to open conditions will not generally be considered.

Directions

As will become apparent, the recommendation of the Parole Board (that the Claimant be transferred to open conditions) was accepted in the first decision of the Secretary of State, and he then purported to rescind that decision and to issue a decision which rejected the recommendation. The internal exchange of E mails has been disclosed in redacted form to the court. Within it, it is stated by Ms Kerry Adams, the Deputy Head of Casework within the Public Protection Casework Section (PPCS), Offender Management and Public Protection Group, that “ our instruction from Ministers (is) that we should not second guess the Parole Board decision unless the process was flawed or the decision irrational.” In her evidence to the court, in a witness statement of 9^th August 2012 she stated that “the PPCS’ legal advisers were of the view that the decision could be retaken should we consider that our original decision was flawed. The Head of OMPPG therefore decided that the decision of 13^th March 2012 should be reviewed and that the Parole Board recommendation should be considered further to ensure that it has not been based on error of fact, or that the recommendation had been irrational.”

Whether that instruction from Ministers can be construed as amounting to a policy is a matter I shall consider below, but what is plain, and was again not the subject of dispute, is that the instruction from the Secretary of State was that Parole Board recommendations should not be rejected unless one of those tests was met. That is certainly the test that was actually applied here.

The Secretary of State for Justice referred the case of the Claimant to the Parole Board in May 2010 “with a request to consider whether (the Claimant) was ready to be moved to open prison conditions” (Footnote: ¹). On 5^th January 2011, a member of the panel of the Parole Board , which had directed an oral hearing, gave directions requiring the following, inter alia

The member also stated that

“ I acknowledge that it is unusual to progress direct to open conditions from category A, but the dossier contains little evidence as to why (the Claimant) has remained in category A conditions for so long, and the risk assessments are somewhat conflicting and are uninformed by the recent development in respect of CSCP. It is therefore my view that an oral hearing is necessary to accurately determine risk in this case.”

The hearing started on 23^rd November 2011. It was then adjourned after issues about the disclosure about previously unseen security reports. It resumed on 12^th December 2012, and after an adjournment, was completed on 15^th February 2012. The Parole Board issued a letter on 27^th February 2012, in which it identified the evidence it had heard, set out its analysis of the Claimant’s offending, considered what it described as “Risk factors,” considered whether there was evidence of any change in the Claimant during his sentence, assessed the current risk of re-offending and serious harm, considered plans to manage risk, and set out its conclusion and decision as follows

“Conclusion and Decision of the Panel

The Panel advise the Secretary of State that for the reasons already given you are ready to be moved to open prison conditions where your risk can be safely managed. You have made significant progress in dealing with your offending behaviour in closed conditions and the time has come for your resolve to be tested in conditions more closely resembling those in the community, to allow you to take more responsibility for your actions and to develop a release plan.”

The evidence before the Parole Board was as follows (taken from the Parole Board letter paragraph 2).

Given the contentions at a later stage by the Secretary of State that the Parole Board misunderstood or misstated the nature of the Claimant’s offending, and understated the extent of his criminal lifestyle, it is necessary to note sections 3 and 4 of the decision letter. I have set sections 3 and 4 out above. It is not necessary to repeat them.

The Parole Board then turned to consider whether there was evidence of change during his sentence. I shall not recite all of a very lengthy and detailed analysis, but it is worth noting the substantial evidence of change. After a poor beginning to his sentence, with adjudications for disobedience and his being noted as difficult and angry, the Board recorded the change in attitude that came about from about 2001-2. From being barely able to read and write, the Claimant has progressed educationally. After obtaining GCSEs, he has now obtained an Open University degree in Humanities with Philosophy and Literature, and has obtained qualifications in computing and IT skills.

Prison reports showed that by 2004-5 he accepted complete responsibility for the index offences and expressed genuine remorse. The Panel then said

“In 2004 you declined to attend the FOCUS programme which was perhaps understandable because alcohol abuse had never been identified as a risk factor and although you had taken some Ecstasy tablets on the evening before the index offences and you were prepared to make money by transporting drugs for others you had never been regarded as a having a drug dependency. You later agreed to be assessed and the programme was no longer considered appropriate.”

The Panel then went on (I have redacted the names of the witnesses who work within the prison service)

“Of greater interest and relevance was an initial assessment completed in September 2004 which decided you were suitable for the CSCP programme. You were willing to attend and complete the programme which could not be conducted at the time in HM Prison Frankland. In 2006 you were re-graded to standard Category A and you successfully completed the ETS with good reports. You continued to work at your studies and in 2010 you also produced a range of written material to use with youth groups to encourage them to avoid criminal behaviour and engage in a positive lifestyle.

On 5th August 2009 you transferred to Long Lartin as a Category A enhanced prisoner with the specific intention of being assessed for the CSCP which you remained willing and keen to complete, Mr M in his report dated 5th July 2010 confirmed that during his discussions with you about the index offences you were open and honest and appreciated that the offences were horrendous and you were lucky that no one was killed. Your behaviour, attitude and general demeanour to both wing staff and educational staff was all positive. Your work in the print workshop since October 2009 was also respected and appreciated. You had a positive MDT for dihydrocodeine in January 2010 when you self medicated for pain without going through the correct channels.

Your most recent previous adjudication was in January 2008. You were concerned about delays in completing the assessment for the CSCP and it was not until your Solicitors issued Judicial Review proceedings that the necessary tests were completed. On 20th December 2010 you were formally rejected from the CSCP on the grounds that you did not have enough violent convictions to meaningfully participate in the programme. The information available to the assessors had not changed since 2004 when you first expressed willingness to engage in the programme and the Panel find that the delay of over six years is unacceptable.

Mr M (a former offender supervisor) attended before the Panel at each hearing and confirmed that all the reports he had received confirmed your very good behaviour. He is no longer your Offender Supervisor but he was responsible for the completion of the OASys in November 2009 and an update in February 2011 when he met you on two occasions to go through the history. You were always polite and respectful to him and impressed as a mature individual. Mr M did not support a transfer to open conditions which he thought was too big a step. He was unable to recommend any particular programme but thought you should be assessed for the SCP.

Ms T has been your Offender Manager since mid 2010 when she first met you. She had spoken to Mr M and discussed your sentence plan in a telephone conference. She placed your risk of serious harm to the public in the community as high as opposed to the assessment of medium in both the available OASys reports. She had hoped to see your progress but thought that the jump from Category A to Category D was too great. Following discussions with Ms Jones she thought you lacked understanding of your offending behaviour and your risk factors, Your lifestyle was centred around financial gain and she thought that you didn’t understand violence. When Ms T was examined by (Counsel) she agreed that you had not been tested and she had not asked you about a possible transfer to open conditions. She was satisfied that you were not manipulating the system. She was aware of a recent attack upon you but had not had the opportunity to discuss it.

Before the adjourned hearing on 12th December 2011 the Panel received the addendum report from Ms T in which she told the Panel that she had reconsidered the evidence given at the first hearing having had an opportunity to consider the reports of Dr Pratt and the submissions of (the solicitor for the Claimant) which she had not seen before the earlier hearing. She still held to her view that your risk of serious harm to members of the public in the community if released immediately was high but she no longer maintained that it was too early to approve a transfer to open conditions. From her knowledge of you she agreed that although, through no fault of your own, you were prevented from engaging in further offending behaviour work you nevertheless used your time productively through advanced education and demonstrated over a long period that you are able to maintain an offence free lifestyle.

The Education Officer Mr F was aware of your continued progress in your academic and vocational studies. The IT course would be valuable in the workplace in the future and there had been nothing but positive feedback from your tutors including female staff. In his view education led to a reduction in re-offending.”

The Panel then recorded that between the first and final hearings, it asked that Ms Jones and Dr Pratt should outline their differences in approach before the Claimant gave evidence. It also asked for more detail about the index offences. As a result of Ms Jones giving evidence about security concerns, said to arise because the Claimant has been attacked in his cell, the panel called for the attendance of Security Officer H and the production of the relevant reports, which were disclosed in redacted form by order of the Board of 23^rd November 2011.

The Board then dealt with the Claimant’s evidence, which includes the following passage, parts of which are relied on by the Secretary of State for Justice:

“At the adjourned hearing in December 2011 you gave evidence having had an opportunity to instruct your Counsel and Solicitors about the matters referred to in the redacted SIR report. You gave a clear and coherent account of the index offences without attempting to minimize the seriousness of the offences or the impact upon your innocent victims. You agreed that you were the lead planner for the robbery that was in the course of preparation. The guns belonged to your co-defendant but you planned to use the handguns in the robbery although the AK47 (Kalashnikov) would have been too big to use. In the event you fired all three weapons at the police in random fashion although you always claimed to have aimed low and the damaged tyres and grills of the chasing police cars support your suggestion. There was one bullet that hit the windscreen rubber of one police car which demonstrated just how dangerously you were behaving and the injuries to the members of the public included a bullet wound to the arm as well as the lower and upper leg of other victims. Your kidnap victim was not physically injured but was traumatised by being driven as a captive in her own vehicle where her presence was required to prevent the police from returning fire. At the time of the chase you told the Panel you expected to die. On arrest you made a full confession whilst maintaining that you did not intend to kill anyone. The verdicts of the Jury reflected that claim to some extent although you still received life sentences for five offences relating to causing grievous bodily harm with intent which reflected the true nature of the deliberate use of firearms. You agreed that at the time you had a casual attitude to violence and you were self obsessed. Your whole life revolved around evading capture, committing crime for gain or planning further crime. In your own words “saying sorry does not cut it”. You described how you moved to Cheetham Hill when you were 15. The area had a massive gang culture and when you started offending in what you described as a no go area you inevitably started doing little favours for other offenders who were more involved with the gang culture and this in a strange and unsatisfactory way kept you safe.

After a difficult period of reflection, often in conditions of maximum security in a Category A establishment, you decided to change your approach to life. Assisted by Mr J at Whitemoor you decided that education was the way forward to change your whole way of life and eventually work for a living without offending. You started from a very low base but with encouragement and determination you acquired the basics and went on to high achievement in the ensuing ten years. In the five years you took to graduate the only offending behaviour work you were able to complete was the ETS although you were always willing to complete the CSCP which was the only relevant offending behaviour programme as you understood it.

You were asked about the security reports which included basic details of the assault upon you in your cell by three inmates on 10th October 2011. You also agreed that you received a further adjudication in July 2010 for failing a MDT urine test when you drank too much water and adulterated the sample. There were no adjudications arising out of the assault upon you. Your wounds were very serious and required hospital treatment.

You made a statement to the police about the assault and described how you injured yourself doing press ups in your cell. This was clearly untrue as you accept but the alternative was to identify your assailants and seek refuge in the vulnerable prisoners unit. You told the Panel how you had been pressed in the past to convert to Islam because those involved believe you may be of use to them with contacts on the outside. You denied any purchase of drugs as suggested by low grade information on the SIR reports or that there was an attempt to obtain a mobile phone. When you were able to get up you pushed your assailants away and made your way to the wing office to get help. You did not fight back and told the Panel that you have never had a fight in prison and you are not a fighter. It is clear that there have been no further incidents and your decision to stand your ground and return to the wing without any revenge schemas (sic) was later favourably commented upon by Dr Pratt.

It was suggested to the panel that your refusal to identify your assailants demonstrates that you still subscribe to the ‘Con Code’. The panel accepts that the assault upon you was an exceptional event and your refusal to name your assailants does not lead to the conclusion that you generally have criminal attitudes.”

Thereafter the Board summarised (albeit lengthily and carefully) the respective contentions of the psychologists Miss Jones and Dr Pratt. Miss Jones contended that the Claimant lacked insight into the risk he presented. She also referred to an absconding from his previous sentence in 1998, and was opposed to the transfer to open conditions. Dr Pratt considered that the Claimant had been successfully rehabilitated, and while recognising that it was unusual, recommended a transfer from category A to category D.

The Panel then set out its assessment of the current risk of reoffending and harm, in the following terms

“6.

Panel’s assessment of current risk of re-offending and serious harm

The most recent OASys prepared by Mr (M) (and the earlier one) assessed your risk of re-offending as low in all categories and your risk of serious harm to members of the public as medium and to all other groups as low. The evidence of this and other risk assessments makes the decision to declare you unsuitable for the CSCP appear as correct and compelling. There is no evidence available to the Panel about any earlier assessments but the failure to complete the assessment for the CSCP between 2004 and 2010 is a matter for concern and your whole progress and categorisation during the last seven to eight years might have been different had the decision been made in a timely manner.

The decision on whether or not to recommend a transfer to open conditions depends in large part upon the view the Panel take of the evidence of Ms Jones and Dr Pratt, both of whom advanced cogent arguments. At the heart of their disagreement is the view that is taken of the one to one work designed to address your risk. Ms Jones takes the view that you could not demonstrate insight into your offending and until you do this you cannot change. Dr Pratt takes the view that education and reflection has changed you from the person you were which is why your account of past events seems distant.

The Panel having heard your very clear account of the index offences and your equally clear denunciation of your criminal behaviour at the time, accept that you do have a clear insight into the lifestyle and selfish behaviour that allowed you to commit the offences with all the serious consequences for the innocent victims. You do have an awareness of your risks and understand the importance of leading a purposeful and constructive lifestyle. The vocational work has been completed to enable you to make a good living on release and that in itself is a constructive indicator for the future. The Panel agrees with Dr Pratt that your change of attitude from the violent, dishonest and acquisitive offender in 2002 to the gradual emergence of an educated, mature and thoughtful man is roof of the proposition that progress is not always dependent upon satisfactory completion of offending behaviour work important as that is in most cases.

Despite the recent provocation you have never been violent and nor have you evidenced any revenge schema (sic) against the perpetrators. The Panel do not approve of the lies told to the police but they understand your reasoning in the circumstances prevailing and approve your decision to stay the course on the wing and refuse to seek refuge in the vulnerable prisoners unit. They accept that continuing to make progress is your aim and a transfer to open conditions will make new demands on your determination to succeed.

You have been signed off by the Carats team and there are no current concerns about either drink or drug dependency.

The Panel prefer and accept the reasoning and conclusions of Dr Pratt. There is additional support for this view when the later report of Ms (T) is taken into account. On a balanced assessment of risk and benefits and having taken into account the strains that a move straight from Category A to Category D will bring the Panel considers that your risks have been reduced to the point where you can be safely managed in open conditions and there is no more work that should be done in the closed estate.”

The Panel then went on to address the plans before them on managing risk. They stated that

“7.

Plans to manage risk

Your risk will be managed in open conditions where the structured and disciplined surroundings will provide a framework for you to face the challenges ahead in a safe and supportive environment. The Panel do not consider that you pose more than a minimal risk of absconding. You are well aware of the consequences of failure.”

The Panel then set out its conclusion

“8.

Conclusion and Decision of the Panel

The Panel advise the Secretary of State that for the reasons already given you are ready to be moved to open prison conditions where your risk can be safely managed. You have made significant progress in dealing with your offending behaviour in closed conditions and the time has come for your resolve to be tested in conditions more closely resembling those in the community, to allow you to take more responsibility for your actions and to develop a release plan.”

On 13^th March 2012, the Public Protection Casework Section of the National Offender Management Service Secretary of State wrote as follows to the Claimant

“OUTCOME OF PAROLE BOARD REVIEW

As you know the Parole Board recommended your transfer to open prison.

The Secretary of State has now considered the Parole Board recommendation, and agrees with this view for the reasons given by the Panel and considers that the following factors (..) affect(ing) your risk are;

•

criminal lifestyle

•

criminal associates

•

use of weapons

•

consequential thinking

•

problem solving

•

victim empathy

•

attitudes

The Parole Board noted that during your time in custody you had completed ETS. Your prison behaviour had also much improved from the earlier part of your sentence. Some report writers are in support of a transfer to open conditions, it is therefore now appropriate for your progress to be tested in less secure conditions where your risks can still be safely managed.

The responsibility for addressing your risk reduction rests with you. However the Secretary of State has identified from the information contained within your dossier the following further interventions in open conditions to help you address these factors, Please note that the Secretary of State cannot guarantee to place you on these specific interventions as there are limits on the availability of resources. In addition, some interventions have entry requirements and may not be appropriate for you following these assessments. In these circumstances other offending behaviour courses/interventions may be considered to help you reduce your risks.

The provision and allocation of prisoners to interventions rests with HMPS

• To further develop the progress made to date and demonstrate the reduction in your risk. To complete further work on victim awareness, your use of violence.

• To test your ability and commitment to remain drug free and subsequently reduce the level of risk posed and develop relapse prevention plans

• Consolidate your learning and skills learned from offending behaviour programmes completed to date.

• Demonstrate your commitment to comply with restrictive measures in open conditions.

• In open conditions, you should develop and test a robust release plan, which should include suitable accommodation, employment training, education and engaging with relevant support networks.

Your next review is set at your tariff expiry date 10/0712013.

Your next parole review process will be undertaken In accordance with the Generic Parole Process, a centrally monitored review process. Your review process is expected to take 26 weeks to complete, as it involves the preparation of reports and co-ordination of various parties, including the Public Protection Casework Section, the Prison Service and the Parole Board, You will be notified by the Parole Board nearer the time about the exact date of that hearing.

Mr R Modelly

Team F”

It is not suggested by the Secretary of State that that was unauthorised, or that authority to issue the decision had not been given to the author of the letter. There can be no doubt that it was issued after consideration of the Parole Board recommendation and its reasoning, and also that the Secretary of State is there described as having formed his own view of the relevant risk factors and reached his own conclusion.

Disclosure has been made of what transpired within the Ministry of Justice after that decision was issued. The Court has also received a witness statement from Mrs Kerry Adams, Deputy Head of Casework at the Public Protection section of the Offender Management and Public Protection Group within the National Offender Management Service (NOMS).

The events subsequent to the original decision started on 20^th March 2012, when the NOMS Directorate of High Security, acting after contact from HMP Long Lartin, expressed concern that a category A prisoner was to be transferred to open conditions pursuant to the Secretary of State’s acceptance of a Parole Board recommendation. I shall refer to Mrs Adams’ statement shortly. It is necessary to start with the exchanges of E mails, which have been disclosed in redacted form. Before she was brought in, a person within the E.O Resettlement team within the prison (whose name is redacted) was suggesting that the Secretary of State should enter appeals (sic) against this and other Parole Board decisions. There is of course no appeal mechanism. If the Secretary of State disagrees with a recommendation then he is able to reject it, subject to matters which I deal with below when addressing the authorities.

Mrs Adams, having been informed of the issue, wrote as follows on 20^th March 2012. Having noted (correctly) that the Parole Board had been aware that the Claimant was a category A prisoner, and having cited the panel’s conclusions on risk (set out in paragraph 33 above) went on

“ We had no good reason to reject such a move, given the very lengthy decision letter the Board had written, and our instruction from Ministers that we should not second guess the Parole Board decision unless the process was flawed or the decision irrational. We therefore issued letters on 15^th march to (the Claimant) prison and solicitor. I hope this clarifies the position………….”

Discussion then ensued about changing the way in which recommendations were dealt with within NOMS. The Head of the Offender Management and Public Protection Group, Mr Davison, then stated what the approach of the Ministers was, before turning to the facts of this case

“ ……..Ministers agreed in 2008 that we should not substitute our reasoning for that of the Parole Board when the Board makes recommendations that offenders be transferred to open conditions, except in very limited circumstances. Those circumstances are (his underlining)

•

Irrationality: i.e. where the Parole Board’s recommendation goes against the recommendation of all the report writers (OM, OS, prison psychologist

•

error of fact: i.e. where the Board’s recommendation is based on an error of fact.

For the irrationality criterion, where there is a “ split” between the main report writers, there is no ground for the Secretary of State’s intervention, as long as the Board has clearly, in its reasoning, addressed the “ opposing” recommendations of the report writers.

In this case the main report writers were not unanimous in opposing a transfer to open conditions. There was a split between them. The (Offender Supervisor) ……………..did oppose transfer to open conditions…….The (Offender manager) originally opposed a transfer to open conditions, but then in an addendum report, made it clear that she no longer maintained the stance that it was too early to transfer to open conditions. The prison psychologist and the independent psychologist had opposing views, which the Board worked through in its reasoning.

Thus, I’m not sure that we would have a basis for rejecting the Board’s recommendation in this case…………..”

After recommending a change in procedures for dealing with such cases he went on

“ I will seek legal advice but, against the background I have outlined, I doubt we could withdraw the Secretary of State’s decision in this case………………………. ……………….I will come back to you once I have had the legal advice.”

On 21^st March Mr Davison circulated an E mail as follows (his italics)

“ This is to confirm that the Secretary of State will retake the decision with respect to the Parole Board recommendation……….we will need to run the retaken decision past legal advisers before it is issued to (the Claimant) but I hope that the retaken decision can be issued to him early next week.”

Unhappily, the prison informed the Claimant that the decision was being retaken before he had received it, which prompted a letter before action. Quite properly Mr Davison criticised the prison’s conduct in an E mail of 27^th March 2012.

Mrs Adams’ evidence, having referred to the process whereby the Secretary of State’s legal advisers were consulted on whether the decision could be retaken, states that

“ Senior managers at the PPCS subsequently reconsidered the decision of 13^th march 2012, taking account of the full dossier. They concluded that the review highlighted factual inaccuracies in the Board’s reasons in support of its recommendation to transfer. In addition they were also concerned that the Parole Board appeared to have attached insufficient weight to potential areas of risk, to the extent that it believed (the Claimant) would present an unacceptable risk of harm to the public if moved to open conditions. The senior managers concluded that the Board’s recommendation was erroneous and as a result of that review the decision of 13^th March 2012 was rescinded and the decision of 3^rd April 2012 was issued.

I asked Mr Gullick whether any new material came forward during these events which had not been considered by the Parole Board. He took instructions during an adjournment. I was informed by Mr Gullick for the Secretary of State that there was no material considered by the Secretary of State or those involved in the decision which had not been before the Parole Board.

On 3^rd April 2012 the same section within the Ministry issued another letter, this time signed by a Mrs S V Gambling, the Head of Casework. It is the letter under challenge in these proceedings and reads as follows:

That second letter is under challenge. As appears below, there is in my judgement a very real issue on the status of that decision. It is therefore necessary to identify what it purports to do, and what it does not purport to do;

I start with the way in which a recommendation from the Parole Board is to be treated by the Secretary of State. As noted above, it is the Board’s duty under section 239(2) CJA 2003 to advise the Secretary of State “with respect to any matter referred to it by him which is to do with the early release or recall of prisoners.” Transfer to open conditions is regarded as an essential prerequisite of a release from prison of a lifer. It follows that the duty under section 239 embraces the issue of transfer to open conditions in a case such as this.

The Board must have regard to the directions issued to it under section 32(6) of the Criminal Justice Act 1991. It follows that when considering whether to accept or reject its recommendations, the Secretary of State must do so as well.

There are two leading cases on the way in which the Secretary of State should treat the Parole Board’s recommendations. In R (Banfield) v Secretary of State for Justice [2007] EWHC 2605 (Admin), a prisoner serving a life sentence for murder, whose transfer to open conditions was being considered, had been before the Parole Board, who recommended transfer to open conditions. The Secretary of State disagreed and refused to transfer him.

Jackson J stated at paragraph 28 that

“…………in any given case what the court has to do is to determine whether the Secretary of State's decision was lawful. In relation to that question, I derive five principles from the authorities:

(1)

The decision of the Secretary of State is not lawful if he fails to take into account the recommendation of the Parole Board and the fact that the Parole Board has particular expertise in assessing the risk posed by individual prisoners. Nevertheless, it is a matter for the Secretary of State what weight he assigns to those factors in any given case.

(2)

The decision of the Secretary of State is not lawful if it was reached by an unfair procedure. It is for the court to determine in any given case whether the procedure was unfair.

(3)

If the Secretary of State places reliance upon significant material that was not before the Parole Board, then fairness may require that the prisoner be given an opportunity to comment upon it.

(4)

The mere fact that the Secretary of State takes a different view from the Parole Board of material that was before the Parole Board is not normally a matter which merits a reference back to the prisoner for his further comments.

(5)

Even if the procedure adopted by the Secretary of State is fair, if his final decision is irrational it may still be quashed on traditional Wednesbury grounds.

Banfield was considered by this court at first instance in R(Hindawi) v Secretary of State for Justice [2011] EWHC 830 but by a two judge court (Thomas LJ and Nicola Davies J). Patently, great weight must attach to the judgements. Thomas LJ (with whom Nicola Davies J agreed) summarised the case as follows at paragraphs 1-4 of his judgement

It is therefore a case where the decision was quashed because it was taken unfairly. However this passage also appears at paragraphs 48- 52

When dealing with findings made by the Parole Board on credibility, Thomas LJ said this at paragraphs 60-65:

I accept entirely that the Secretary of State must accord weight to the Panel’s recommendation and reasoning, but I do not read Thomas LJ as suggesting that he is prevented from disagreeing with the Panel should he choose to do so, provided of course that he approaches his decision along proper lines. Nothing in those paragraphs seems to me to be intended to go behind or cut down the broad statement of principle at paragraph 52 of his judgement. Since the legal structure requires him to receive the Parole Board’s report, and since he has sought its advice, he was duty bound to give proper consideration to its recommendations and give them appropriate weight. But I do not consider that Hindawi prevents the Secretary of State from rejecting a Parole Board recommendation if he disagrees with a conclusion reached by it from the factual material before it.

However when the Secretary of State considers a Parole Board recommendation, he must do so fairly and properly, and give adequate reasons. If he misinterprets it, or fails to take the Board’s reasoning into account, he will have failed to have regard to it in the manner required by law. Depending on the way in which he deals with it, a decision he makes could also be struck down for irrationality, or for a lack of adequate reasoning.

Some time was taken before me on authorities dealing with cases where a decision maker reaches a conclusion different from that reached in an earlier decision: for example R (Beckman) v East Herts DC [1998] JPL 55 and R (Lowe) v Governor of HMP Liverpool [2008] EWHC 2167 Admin where HH Judge Kay QC refused to quash a recategorisation of a prisoner. I do not regard them as relevant. They relate to the argument whether a subsequent decision must follow an earlier decision. Judge Kay QC had cited to him some cases from Town Planning law where an earlier decision on an application was different from one made on another application. They (like Beckman) have no relevance here, because this is not a case where decisions on different applications are being compared. In any event the principle is that derived from the judgement of Mann LJ in North Wiltshire District Council v Secretary of State for the Environment (1992) 65 P & CR 137 at 145 (followed by the Court of Appeal in Dunster Properties Ltd v The First Secretary of State & Anor [2007] EWCA Civ 236), neither of which were cited in Lowe. A decision maker must have regard to earlier decisions on cases which are comparable, but he is not bound to follow them. Mann LJ said:

“ An inspector must always exercise his own judgment. He is therefore free upon consideration to disagree with the judgment of another but before doing so he ought to have regard to the importance of consistency and to give his reasons for departure from the previous decision.”

The Court of Appeal has just reiterated that principle in Secretary of State for Communities and Local Government v Fox Strategic Land and Property Limited [2012] EWCA Civ 1198 per Pill, Rimer and Black LJJ.

I turn now to authorities relating to the way in which a decision is written. I do so because the case for the Secretary of State relied on what were said to be omissions from the Parole Board letter, and on what were said to be considerations which the Board had not addressed.

It is useful to set out also the tests which the law applies to the reading and interpretation of decision letters. In this case those principles apply as much to the Parole Board decision and recommendation as they do to the decision letters of the Secretary of State. The standard of reasoning required must of course reflect the context in which the decision is taken - in this case the Parole Board or the Secretary of State - but that does not justify a departure from the principle that while adequate reasons are required, which deal with the principal points in issue, they can be shortly stated.Given the number of cases in that field where the point is raised, it is inevitable thatthe principles are most conveniently to be found in the field of challenges to Ministerial town planning decisions. A very useful guide appears in the judgement of Keene LJ in First Secretary of State & Anor v Sainsbury's Supermarkets Ltd [2007] EWCA Civ 1083 at paragraph 43, where he summarised the law on this topic, while explaining that he preferred the submissions in that case of Miss Nathalie Lieven for the Secretary of State

“ The judge referred to this aspect in the final sentence of his decisive paragraph, when he observed that

"at least the reasoning of the Secretary of State did not explain why those disadvantages [of Option A] had to be accepted." (paragraph 73)

Both appellants challenge that proposition. The Secretary of State relies upon the leading case of South Bucks District Council v. Porter (No. 2) [2004] 1 WLR 1953, where Lord Brown of Eaton–under–Heywood summarised the principles applicable to this well-worn topic. At paragraph 36 he said:

"The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the "principal important controversial issues", disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."

Miss Lieven emphasises the propositions that the degree of particularity required depends entirely on the nature of the issues and that decision-letters are addressed to parties well aware of the issues involved and the arguments advanced. She also refers us to a passage from Clarke Homes Ltd v. Secretary of State for the Environment [1993] 66 P and C R 263, cited with approval in the South Bucks case. In Clarke, another case involving a reasons challenge, Sir Thomas Bingham, M.R., observed at page 271 – 272:

"I hope I am not over-simplifying unduly by suggesting that the central issue in this case is whether the decision of the Secretary of State leaves room for genuine as opposed to forensic doubt as to what he has decided and why. This is an issue to be resolved as the parties agree on a straightforward down-to-earth reading of his decision letter without excessive legalism or exegetical sophistication."

The principle there set out is not confined to the interpretation of decision letters in planning appeals, but has wider application. See for example R (on the application of Assura Pharmacy Ltd) v NHSLA and E Moss Ltd (t/a Alliance Pharmacy) [2008] EWCA Civ 1356 per Lawrence Collins LJ, who when dealing with decisions by a Primary Care Trust to list pharmacies which could dispense prescriptions, said at paragraph 59

“……decision letters such as the ones which are the subject of this appeal are to be considered on a "straightforward down-to-earth reading… without excessive legalism or exegetical sophistication ": Clarke Homes Ltd v Secretary of State for the Environment (1993) 66 P&CR 263 at page 272-3, per Sir Thomas Bingham MR), applied in, e.g. MR Dean & Sons (Edgware) v First Secretary of State [2007] EWCA Civ 1083, at [43].

It is also well established that , while a decision maker must have regard to all material considerations he is not required to spell them all out in the decision letter. That appears from the speech of Lord Lloyd of Berwick in the leading case of Bolton Metropolitan District Council and Others v Secretary of State for the Environment and Others[1996] 71 P and CR 309. I referred to this authority during legal argument, although it does no more than set out long established principles. If true in a Town Planning case, where there is an express statutory duty to have regard to all material considerations (see section 70 Town and Country Planning Act 1990), so must it be true where the duty is implied by the common law relating to decision making. I draw attention also to the authorities relied on by Lord Lloyd which do not derive from cases in town planning, but from the general principles relating to decision making. He said the following at 314-315:

“The correct approach

Before dealing with each of these challenges, I should first make some preliminary observations on the correct approach to decision letters in planning appeals, with which alone we are concerned in this case. This can be done very briefly, since the question was fully covered in the recent speech of Lord Bridge of Harwich in Save Britain's Heritage v. No. 1 Poultry Ltd. ([1991] 1 WLR 153)

Under section 70(2) of the Act of 1990, read with section 77(4) , it was the duty of the Secretary of State to have regard “to the provisions of the development plan … and to any other material considerations”. Under rule 17(1) of the Town and Country Planning (Inquiries Procedure) Rules 1988 (S.I. 1988 No. 944), it was the duty of the Secretary of State to “notify his decision … and his reasons for it in writing to all persons entitled to appear at the inquiry who did appear …” So the Secretary of State had to have regard to all material considerations before reaching a decision, and then state the reasons for his decision to grant or withhold planning consent. There is nothing in the statutory language which requires him, in stating his reasons, to deal specifically with every material consideration. Otherwise his task would never be done. The decision letter would be as long as the inspector's report. He has to have regard to every material consideration; but he need not mention them all.

What then must be mentioned? The classic exposition was given by Megaw J. in In re Poyser and Mills' Arbitration ([1964] 2 QB 467) approved by this House in Westminster City Council v. Great Portland Estates Plc ([1985] AC 661)

“Parliament provided that reasons shall be given, and in my view that must be read as meaning that proper, adequate reasons must be given. The reasons that are set out must be reasons which will not only be intelligible, but which deal with the substantial points that have been raised.”

Ten years later, in Hope v. Secretary of State for the Environment ([1975] 31 P. & C.R. 120 at 123) Phillips J. said:

“It seems to me that the decision must be such that it enables the appellant to understand on what grounds the appeal has been decided and be in sufficient detail to enable him to know what conclusions the inspector has reached on the principal important controversial issues”

Lord Bridge in Save Britain's Heritage v. Number 1 Poultry Ltd ([1991] 1 W.L.R. 153 at 156C.)described this statement as being “particularly well expressed”.

Coming to the present case, Glidewell L.J. put the matter as follows :

“In relation to two of these issues. Schiemann J. in the passages I have quoted said that it is ‘fanciful to postulate’ that the Secretary of State did not take these matters into account, nor give them appropriate weight. With all respect to a judge with great experience in this field, I do not think this is a proper approach. A decision letter must, in order to give proper and adequate reasons, refer to each material consideration, and explain why because or despite it the eventual decision is reached. At the least, if there is no express reference to some matter, it must be possible for the reader to infer that the words used implied such a reference.”

It may be that in this passage, Glidewell L.J. was saying only that he disagreed with Schiemann J.'s conclusion. But in so far as he was saying that a decision letter must refer to “each material consideration” I must respectfully disagree. This seems to go well beyond Phillips J.'s formulation in Hope v. Secretary of State for the Environment . What the Secretary of State must do is to state his reasons in sufficient detail to enable the reader to know what conclusion he has reached on the “principal important controversial issues”. To require him to refer to every material consideration, however insignificant, and to deal with every argument, however peripheral, would be to impose an unjustifiable burden.

For the same reason, I have doubts about another passage in Glidewell L.J.'s judgment where he quotes from the speech of Lord Keith of Kinkel in Reg. v. Secretary of State for Trade and Industry, Ex parte Lonrho Plc.( [1989] 1 W.L.R. 525 at 540)

“The only significance of the absence of reasons is that if all other known facts and circumstances appear to point overwhelmingly in favour of the different decision, the decision-maker, who has given no reasons, cannot complain if the court draws the inference that he had no rational reason for his decision.”

Glidewell L.J. adds,

“I add that in my judgment the same principle applies to a failure to refer in a decision to a material consideration, or to an indication that it is not material—the inference may be that the decision-maker has not fully understood the materiality of the matter to the decision.”

Since there is no obligation to refer to every material consideration, but only the main issues in dispute, the scope for drawing any inference will necessarily be limited to the main issues, and then only, as Lord Keith pointed out, when “all other known facts and circumstances appear to point overwhelmingly” to a different decision.”

It follows that neither the Parole Board nor the Secretary of State was required to set out every material consideration in detail, provided that it is apparent on a sensible reading of the decision in question that they have been taken into account. Similarly, reasons may be shortly stated.

I turn next to the status of the approach taken by Ministers to Parole Board decisions described in the E mail traffic by Mr Davison. I accept the standard public law test that, if a Minister has stated a policy, he must apply and follow it in any decision that falls within its ambit, unless he gives reasons for not doing so. In such a case it would be harmful to the confidence placed in decision making by Ministers or statutory bodies if a publicly stated policy were departed from without adequate reasons being given. However I do not accept that this internal and unpublished rule of practice amounts to a policy in that sense, and thereby imposing the same obligation in reasoning terms. Indeed, if there were a settled unpublished policy that the Secretary of State would always accept a Parole Board recommendation unless it were irrational or based on errors of fact, that could be regarded as an unlawful constraint on the duty placed upon him to form his own judgement. In any event even if this rule of internal practice attracted the legal consequences of being a policy as such, it does not take the Claimant’s case further, as , if the second decision was lawful, the issue is not whether the Secretary of State gave reasons, but whether adequate reasons were given, and whether his decision was itself rational.

I raised this with counsel, and invited further written submissions. In a nutshell, if the first decision of the Secretary of State was lawful, did he have power to rescind it and replace it with another ?

I have received further submissions from counsel. I am grateful to them for providing them, although it must be said that I am not persuaded that either has grappled fully with the fundamental question raised.

Miss Plimmer has submitted that the decision-maker has a wide discretion and this derives from section 12 of the Prison Act 1952 and the relevant rules. Section 12 reads as follows

She submits that the impact of the decision does not affect the wider public save in an indirect sense. In addition, this discretion leaves scope for the Secretary of State to rescind a negative decision and re-make a decision that properly takes into account the relevant evidence. She referred to R(Hill) v Secretary of State for the Home Department [2007] EWHC 2164 (Admin) per Irwin J. She contends that a residual discretion exists which permits the Secretary of State to change his mind. However, I find nothing in Hill or any of the other authorities cited by her which goes to that issue.

Mr Gullick sought to rely in his original skeleton on an incomplete citation of paragraph 61 of the judgement of Peter Gibson LJ R(Begbie) v Secretary of State for Education and Employment [2000] 1 WLR 1115 @ 1127 as authority for the proposition that if a mistake was made by a Minister or another person making a statement, the court should be slow to fix the authority permanently with the consequences of that mistake. But as the relevant passage in the judgement of Peter Gibson LJ makes clear, he was there dealing only with a claimed legitimate expectation . I have italicised the words missed out of Mr Gullick’s citation:

In his subsequent submissions Mr Gullick reiterated that submission, adopted Miss Plimmer’s submission and referred to 12(1) of the Interpretation Act 1978

“Continuity of powers and duties

(1)

Where an Act confers a power or imposes a duty it is implied, unless the contrary intention appears, that the power may be exercised, or the duty is to be performed, from time to time as occasion requires.”

He then endorses Miss Plimmer’s submission that the statutory context leaves scope for the Secretary of State to rescind a negative decision and re-make a decision that properly takes into account the relevant evidence. He then refers to the speech of Lord Griffiths in Matrix Securities Ltd v Inland Revenue Commissioners [1994] 1 All ER 769@781 as authority for the proposition that a Minister may substitute a new decision for an earlier erroneous one.

I say at once that that citation really does not assist. That case involved a clearance given to a tax avoidance scheme which did not comply with requirements, where the application for it had been inaccurate and misleading, as the Headnote explains

“Held - (1) (Per Lord Templeman and Lord Griffiths) The scheme proposed by the applicant was a sophisticated tax avoidance scheme of circular self-cancelling payments designed to obtain capital allowances of £38m in circumstances where only capital allowances of £7.432m were actually available. Under the scheme construed as a whole the expenditure on which relief was available under the 1990 Act was the actual expenditure of £10m and the allowable deemed expenditure was £8m. The claim to initial allowances of £38m was based on a pretended expenditure of £95m when in fact the scheme aimed to produce fiscal expenditure of £95m and a real expenditure of only £18m. It followed that the inspector had wrongly given tax clearance to the scheme (see p 778 c d f h j, p 780 a to d and p 781 c to f, post).

(2)

It was not an abuse of power for the Revenue to withdraw the advance clearance give by the inspector, and accordingly the appeal would be dismissed, because--

(a)

(per Lord Templeman, Lord Jauncey and Lord Mustill) the applicant's letter of 15 July was inaccurate and misleading in that it omitted a vital piece of information to the Revenue, namely the fact that the applicant would be paying the vendor only £8m for the property (see p 777 e, p 781 c d, p 789 g to j, p 790 j to p 791 a and p 793 e f, post);

(b)

(per Lord Griffiths, Lord Jauncey, Lord Browne-Wilkinson and Lord Mustill) the Revenue had, to the applicant's knowledge, made it known that in particular categories of transactions, such as unit trust schemes for acquiring property which included expenditure on a put option, advance clearances could only be given by the Financial Institutions Division (see p 781 f to j, p 790 e f, p 791 f to p 792 c f to p 793 a e f, post).”

I have therefore returned to first principles. Neither counsel has referred me to Regina v North and East Devon Health Authority, ex p Coghlan [2001] Q.B. 213, but it is of course where one should look when considering the issue of legitimate expectation in terms of process. I refer to Lord Woolf MR at paragraphs 57-8

There was no question of a change of policy here. If the parties are correct that the Secretary of State could change his mind and issue a new decision, the question is whether the first or second category from Coghlan applied. This case involved no change of policy, but it may involve the second category. Consideration of whether it does so requires discussion of the context.

It is for the Secretary of State to determine whether a prisoner should be transferred into open conditions. As noted above, statute enables him to receive the advice of the Parole Board after a referral to it, and he has given directions setting out the way in which that process is to be handled. In my judgement, it is implicit in the process devised that the Secretary of State will issue a decision after referring the question of transfer to the Board, and having then received its advice. Given the statutory role of the Board, one cannot read section 12 of the Prison Act 1952 as permitting him to give directions without regard to the existence of the process whereby the Board is consulted and its recommendations given and received. The prisoner (and anyone else with an interest in the case) will know that the decision issued reflects the outcome of the process of consideration of transfer undertaken by the Secretary of State, advised by the Parole Board. The terms of the first letter reflect that, setting out as they do that he will be transferred to open conditions.

I regard it as inconsistent with that statutory and process context that the Secretary of State can then issue a different decision within the same process, absent any change in circumstances or any new evidence, without inviting submissions from those affected. It falls within the second Coghlan category. It follows that while the Claimant cannot insist that the Secretary of State does not revisit his earlier decision, he can compel him to do so in a procedurally fair way.

Lest there be any doubt about it, I entirely accept that the Secretary of State has the power to decide that a prisoner should be placed in a different category - for example moving him from category D to category A. But that is not what the second decision purported to do. It purported to substitute the second decision for the first as the Secretary of State’s response to the Parole Board’s recommendation, arrived at in response to the Secretary of State’s own request to advise him on moving the Claimant from category A to Category D. If the approach of the Secretary of State is right, he can do so, even absent some reason why his first decision was not lawfully made. He has suggested none.

I also disagree with Miss Plimmer’s submission that the impact of changing a decision has nothing but an indirect effect on the wider public. In some cases a decision to release can generate concern among those directly affected by the past crimes of the prisoner and among the wider public, and in a few cases a decision not to can excite public interest as well. But whether those observations hold good or not, it is patently in the public interest that Ministerial decisions, once made, should stand unless and until challenged successfully in the courts, or overtaken by a subsequent lawfully made decision where procedural fairness has been observed, and especially so on issues relating to the liberty of the subject.

It is for the Secretary of State to determine whether a prisoner should be transferred into open conditions. As noted above, statute enables him to receive the advice of the Parole Board after a referral to it, and he has given directions setting out the way in which that process is to be handled. As also already referred to, it is implicit in the process devised that the Secretary of State will issue a decision after referring the question of transfer to the Board, and having then received its advice. The prisoner (and anyone else with an interest in the case) will know that the decision issued reflects the outcome of the process of consideration of transfer undertaken by the Secretary of State, advised by the Parole Board. The terms of the first letter reflect that, setting out as they do that he will be transferred to open conditions.

I do not regard it as necessary, for the purposes of dealing with this application, to determine whether the Secretary of State had the power to withdraw a decision and substitute another for it, in a case where the first decision was lawful and there had been no change in circumstances, nor any new evidence, but only a change in internal advice to the Minister within his department. It follows that I reserve my position on the issue of whether the Secretary of State had the power to rescind this decision. Determination of that issue would have required fuller and more thoroughly researched submissions than were made in this case.

But I do consider that there was an unfairness inherent in the procedure adopted by him. Having held out as his decision one reached in which he accepted the recommendation of the Parole Board, he then acted upon arguments advanced privately by one party to change his mind, without inviting submissions from the Claimant.

As will become apparent, I also consider that, even if he had the power to rescind his earlier decision, the Secretary of State’s decision of 13^th April 2012 was itself vitiated by flaws in reasoning, and was itself irrational.

Questions of rationality, reasoning and fairness; submissions

Miss Plimmer submitted as follows:

Mr Gullick for the Secretary of State submitted that

Conclusions on rationality, reasoning and fairness

If the Secretary of State had the power to rescind the decision, and had not acted unfairly, one must then consider whether his second decision letter was

The context for the consideration of those issues is that the Secretary of State has stated that

“…….the Parole Board’s reasons in support of transfer to open conditions contain a number of important omissions. These omissions are sufficiently serious as to render the basis of the Board’s recommendation as fundamentally flawed. As such, the Secretary of State is not satisfied that you present an acceptable risk to be transferred to open conditions.”

If that conclusion could not be reached rationally, or if his reasons were inadequate, then his decision letter was unlawful. The Secretary of State has set a test to himself of whether

The passage referred to by the Secretary of State as being factually erroneous is

“on arrest you made a full confession whilst maintaining that you did not intend to kill anyone. The verdicts of the Jury reflected that claim to some extent although you received life sentences for five offences relating to causing grievous bodily harm with intent.”

The letter from the Parole Board must be read as a whole, and in my judgement it is simply impossible to argue that the Parole Board did not treat the Claimant as having an intention to kill. Their letter sets out at considerable length the fact that the Claimant was convicted of three counts of attempted murder, and it refers to the remarks of the sentencing judge. The passage relied on is, contrary to the assertion of the Secretary of State, true in every respect.

He was not convicted of all the counts of attempted murder laid against him. But , as the Parole Board also stated, since that time the Claimant had accepted his guilt of all the index offences, including attempted murder. It also recorded that he was sentenced for attempted murder. There is nothing whatever in its reasoning which suggests that it any time accepted that he did not have an intention to kill in the cases where he was convicted of attempted murder.

No fair person could possibly read the Parole Board letter as a whole as containing the flaw which the Secretary of State purported to identify. The Secretary of State’s second decision letter has taken one passage out of context and misinterpreted the effect of the Parole Board’s very careful treatment of this issue. It follows that in my judgement his letter was both irrational, and inadequately reasoned.

The Secretary of State stated that

“The Board was entitled to disregard this intelligence but the fact that it did not state it had done so raises concern that it was not factored into The Board’s risk assessment when considering your suitability for open conditions.”

That passage makes it plain that the Secretary of State approached the issues on the basis that the Parole Board had disregarded the intelligence. If he did so, the author of the letter cannot have read the Parole Board recommendation and letter with the attention it deserved. In my judgement that account by the Secretary of State of the letter and reasoning bears no relation to the actual decision of the Parole Board, and is plainly irrational. The facts are that the Board not only adjourned the hearing so that the material could be obtained and explored, but it then went to the trouble of setting out in its recommendation what that material contained, and why it formed the view that it did about the significance of that information. It in no sense disregarded it.

It seems to me also that the author of the letter has confused two starkly different concepts; one is whether the Parole Board had regard to the material but differed from the author of the letter on the weight it should attract or the conclusion to be drawn from it, while the other is whether it had disregarded it. The former could justify a refusal to accept its recommendation; given the facts of what the Panel considered and stated, the latter could not.

It is in my judgement a fundamental misdescription of the Parole Board’s approach to describe it as disregarding this information, let alone treating it as a serious flaw. I find the Secretary of State’s decision letter on this topic to be both irrational and inadequately reasoned.

The Secretary of State has criticised the Parole Board on the basis that the Claimant’s drug use at the time of this offending is a “ key risk factor” and went on to say that it considered that the Parole Board had not questioned or addressed the issues of his drug use at the time of the offending, nor security information within the prison suggesting that he had used drugs.

But that assertion is also misconceived, and unfair to the Parole Board. The Panel had expressly addressed his drugs use at the time of the offending, and had also expressly considered the security information on the topic, which it had put to the Claimant. No-one could fairly describe this as a “fundamental omission” from the Parole Board’s letter.

If the Secretary of State had said that he disagreed with the weight to be given to the evidence about drugs, or had reached a different conclusion about risk based on the factual findings of the Panel, he would have been entitled to do so. But that is not what he did. What he has done instead is set a test of whether there have been “fundamental omissions” from the Board’s treatment of this issue. On that issue, his conclusion was irrational, and his reasoning inadequate.

The Secretary of State’s case is that there is a difference between the Claimant saying that he had been involved in not more than 10 robberies when “associated with the Cheetham Hill gang” and his telling Dr Pratt that he had not been an adult member of the gang. The Secretary of State argues that “ this contradiction in two recent reports was not reflected in the Board decision. The Secretary of State is of the view that this account of criminal convictions is indicative of a lifetime pattern of violence.” He criticises the Board for not referring to this self disclosed number of previous robberies and says that there is no indication that the Board factored this important disclosure into its risk assessment. He calls it an important omission, and that without an indication of the weight attached to the past self disclosed record, the Board’s risk assessment is “ fundamentally flawed.”

It cannot fairly be said that the Parole Board overlooked his previous criminal conduct. Having set out his convictions, it described him at the time of the index offences as

“ on the run from the police, leading a criminal lifestyle and associating with like minded individuals. You were brought up and lived in area where criminal gang activity was rife, and you acknowledge that at times you facilitated criminal activities for those associated with the gang culture whilst denying that you were a major figure in the gang activities. You provided vehicles and on the occasion of the index offences arranged to transport guns and ammunition in preparation for armed robbery in which you were prepared to be involved………………………Your involvement in the criminal culture……….”

It also refers to Dr Pratt’s evidence that at the time of the index offences he was

“……………with associates holding pro offending attitudes and prepared to be violent and to use weapons in pursuit of your aims with no regard for the effect of your activities on others.”

In my judgement, there can be no serious suggestion that the Board failed to deal with this issue properly, nor failed to set out the weight they gave to the previous conduct. The central issue it had to address was whether a man who had shown himself committed to serious crime before his convictions had now demonstrated that he no longer posed a risk of returning to that pattern of life. It did so in no little detail, and by reference to his lifestyle and attitudes, and having heard a great deal of evidence. The material relied on by the Secretary of State was all before the Panel, and there is no indication whatever that the Panel failed to consider it.

I should add for completeness that even if it were an omission, no-one could seriously argue that it was sufficiently serious to render the basis of the recommendation as fundamentally flawed.

I turn now to the Secretary of State’s own reasoning, as raised in Miss Plimmer’s Ground 4. He was under a duty to deal with the principal issues raised by his referral to the Parole Board, and revealed by its report, and the material put before it. Most of the decision letter is taken up with his criticisms of the Parole Board. He refers to the “lifetime pattern of violence” and then towards the end of the letter says

“In conclusion, you were convicted of serious offences which could have resulted in loss of life. You are currently placed in Category A conditions and have not been tested in lower category secure conditions. Whilst none of these factors preclude you from being moved to open conditions, the Secretary of State needs to be satisfied that such a move will not jeopardise the safety of the public. Furthermore, any such recommendation must be based upon the considerations set out in the Secretary of State’s directions in respect of the transfer of indeterminate sentence prisoners to open conditions.

Having taken into account all of the above the Secretary of State has concluded that the Parole Board’s reasons in support of transfer to open conditions contain a number of important omissions. These omissions are sufficiently serious as to render the basis of the Board’s recommendation as fundamentally flawed. As such, the Secretary of State is not satisfied that you present an acceptable risk to be transferred to open conditions. He therefore rescinds his earlier decision to accept the Parole Board’s recommendation.”

It follows that there are several significant issues dealt with by the Parole Board, but not addressed by the Secretary of State. It is worth recalling the terms of his own direction at paragraph 3

“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 lifer to have made significant progress in changing his/her attitudes and tackling behavioural problems in closed conditions, without which a move to open conditions will not generally be considered.”

He makes no attempt, even on a generous view of what could be implied into his letter, to consider the evidence before the Parole Board about those matters, nor even to condescend to setting out his views on the differing conclusions out before the Parole Board on the topic, or of their conclusions. The important matters which have to be considered by virtue of paragraphs 6 (d) to (k) are not addressed at all.

His decision letter thus fails to meet the standard required by long settled authority (and summarised in South Bucks District Council v. Porter (No. 2) [2004] 1 WLR 1953 per Lord Brown of Eaton-under-Heywood) that

“The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the "principal important controversial issues", disclosing how any issue of law or fact was resolved.”

I am therefore of the view that the Secretary of State’s reasoning for his decision not to transfer the Claimant to open conditions was itself inadequate.

Overall Conclusions and availability of relief.

It follows that the second decision letter was unlawful because

It follows that Court will quash the whole letter, and therefore both the purported rescission of the first decision letter and the refusal to transfer to open conditions. The terms of the Order appear below.

It is now up to the Secretary of State how he proceeds thereafter. I have not decided that the Secretary of State cannot reconsider his acceptance of the Parole Board recommendation, but I have decided that if he does so he must invite representations first. It follows also that if he decides to reconsider it he must approach his decision in a proper and sufficiently reasoned manner, and dealing with the Parole Board recommendations and reasoning in a way that addresses them appropriately. Given my quashing of the second decision letter, the first decision letter will remain extant unless and until the Secretary of State elects to reconsider the categorisation of the Claimant or to reconsider the Parole Board recommendation. I agree with Mr Gullick in one respect- that if the decision is quashed, he is not under a duty to refer the matter back to the Parole Board. He has the power to do so, but not the duty.

I make it clear also that I reject Miss Plimmer’s submission that the decision can only be made by the Secretary of State himself. It can be delegated to officials authorised for that purpose, as is standard practice in most Government Departments.

Nothing in this judgement seeks or is intended to express a view on the proper outcome of any further consideration of the categorisation of the Claimant. That is for the Secretary of State to consider, having received and considered the advice of the Parole Board. All the Court does say is that if there is to be a reconsideration, the process must be conducted lawfully, fairly, and result in a properly reasoned and rational decision.

Having circulated this judgement in draft I am grateful to Counsel for submitting a list of typographical and other corrections. The terms of a draft Order were also submitted to me. The Order of the Court is as follows