Wright v The Parole Board of England and Wales

In this case, 59-year-old Ashley Wright (DOB 26.11.58), “the Claimant”, challenges the lawfulness of the decision of the Parole Board, “the Defendant”, dated 17 February 2017, to refuse to direct his release.

On 6 June 2002, following a trial at Birmingham Crown Court, Sir Edwin Jowitt, sitting as a judge of the High Court, imposed an extended sentence upon the Claimant in respect of offences of Rape and Robbery, the total custodial term imposed was 15 years, with an extension of 4 years.

In passing sentence, Sir Edwin noted that the offences involved three separate victims, and that the circumstances surrounding one of the victims was particularly serious due to the Claimant having held her captive for a significant period, during which he intimidated her by his threats, his manner and his violence, and thereafter raped her both vaginally and anally. In respect of the other two victims, the Claimant both raped and robbed them. Moreover, all three victims, either were or had been sex workers at the time when they were raped by the Claimant.

The Claimant appealed against conviction to the Court of Appeal, Criminal Division, which dismissed his appeal in June 2004.

In 2008 the Claimant married Jane Wright, a woman he had previously known for some years. She was a hospital theatre nurse.

On 31 January 2011, the Claimant was released on licence to approved hostel premises in Walsall and subject to conditions. However, on 6 May 2011, during a period when disclosure of the Claimant’s offending was being made to his wife by the Multi Agency Public Protection Panel, she informed the Probation Service about an incident which had just occurred, namely that on her return from work she had found the Claimant unresponsive at home, having apparently been smoking crack cocaine, and she was fearful for her own safety. On the same evening, the Claimant returned to the hostel, having self-harmed by cutting his arm, and on the following day, he tested positive for cocaine. On 9 May 2011, the Claimant left the hostel after stating that he intended to commit suicide. The Claimant’s licence was revoked and he was recalled to prison, a decision about which he was informed on 9 May 2011 by telephone. However, the Claimant did not surrender until 11 May 2011. He has remained in custody since then, and his sentence expiry date is understood to be 31 January 2020.

On 25 July 2012, the Defendant provided its first decision concerning the Claimant’s release on parole. In its written decision, the Defendant noted that the Claimant had numerous previous convictions for offences of dishonesty. In 1982, he had been convicted of Aggravated Burglary, Unlawful Wounding, and Assault Occasioning Actual Bodily Harm, for which he received a sentence of 5 years’ imprisonment, and in 1991, the Claimant had been convicted of Blackmail and Assault Occasioning Actual Bodily Harm, and received a sentence of 4 years’ imprisonment.

The Claimant continued to maintain his innocence of the most recent offences of Rape and Robbery, and was not willing to discuss the circumstances leading up to them. The Defendant found it difficult to identify with any real precision the Claimant’s primary risk factors, but stated that it was sure that,

“…some combination of your sexual interests, distorted attitudes towards women, a strong sense of entitlement, a willingness to use and some considerable skill in using violence and other means to control others through manipulation and by instilling fear holds the key to identifying your primary risk factors.”

The Defendant stated that it was particularly concerned that there appeared to be a pattern of targeting vulnerable women, but that the relevance of the Claimant’s substance misuse in assessing his risk of sexual or violent reoffending was unclear. The Defendant found the Claimant to be a wholly unreliable witness when it came to his explanation as to how he had come to smoke crack cocaine whilst on licence, and that he had sought to mislead both his Offender Manager about this, and the Defendant during the hearing. The Defendant also considered that the Claimant was highly manipulative in his relationship with his wife.

The Defendant noted that although the OASys Violence Predictor categorised the Claimant as posing a low likelihood of violent offending, the Risk Matrix 2000 indicated that the Claimant posed a high risk of sexual reoffending, and the Spousal Assault Risk Assessment (SARA) also indicated a high risk. The Defendant assessed the Claimant’s current risk as at least a high risk of sexual recidivism, and of perpetrating severe violence, particularly, but not only, against a woman with whom he was or had been in a relationship.

In these circumstances, the Defendant did not direct release, as it was not satisfied that it was no longer necessary for the protection of the public for the Claimant to remain in custody.

The Defendant considered the question of the Claimant’s release from custody at a further hearing, and provided a second written decision dated 24 June 2014. By then the Defendant noted that not only had the Claimant admitted that he had used cocaine whilst he had been released on licence, but that he had acknowledged his behaviour towards females as bullying, and that his conduct in relation to the index offending amounted to rape. However, as this was only a recent acknowledgment by the Claimant, there had been no real opportunity for work to be undertaken with the Claimant in custody that would identify the full range of risk factors in his case.

The Defendant noted that in August 2013 the Claimant had received an adjudication for threatening and abusive behaviour towards his wife in a telephone conversation. Moreover, the Claimant had recently been placed on a Violence Reduction Scheme because of concerns that he was bullying other prisoners.

In these circumstances, the Defendant determined that the Claimant’s risk levels remained the same as at the date of the previous decision, and declined to order the Claimant’s release from custody.

In preparation for the next review hearing, a member of the Defendant directed, on the Member Case Assessment Directions Form dated 7 July 2015, that a psychological assessment should be provided, regarding the presence of personality disorder or other psychological conditions that may have a bearing on his offending behaviour and risk of serious harm, with recommendations regarding future interventions and risk management.

In 2016, two psychological reports were prepared upon the Claimant. The first was a Structured Assessment of Risk and Need (Sexual Offending), (“SARN”), by Stephen Davison, Forensic Psychologist in Training, dated 8 March 2016, and the second was a Case Review Report by Louisa Lemdani, Chartered and Registered Forensic Psychologist, dated 18 April 2016.

The former of these noted that the Claimant had engaged in the Becoming New Me (“BNM”) programme, and appeared to have made progress in relation to a number of previously identified risk factors; albeit, he continued not to acknowledge the presence of a sexual interest in violence. Mr Davison stated that until he acknowledged this aspect of his previous offending, he would not be eligible for inclusion on a treatment programme to address it, such as the Healthy Sex Programme. In the meantime, Mr Davison recommended that the Claimant’s progress to date could be consolidated by participation in the Living New Me (“LNM”) programme. A SARN Risk and Success Factor Analysis (“RSFA”) framework concluded that the Claimant had a high level of dynamic risk in domains, which included sexual interest. However, Mr Davison noted that the Defendant had requested that a psychological assessment regarding the presence of a personality disorder should be carried out, and acknowledged the potential relevance of this to the Defendant’s assessment of risk.

The report from Ms Lemdani, was effectively a non-report, in that she explained the reasons why she had not carried out a Personality Disorder Assessment, using the International Personality Disorder Examination (“IPDE”). This was for a number of reasons, including: the manual states that the interview is not appropriate for those “very agitated” or suffering with “severe depression”, and the Claimant described himself as experiencing severe depression; the manual states that the interview is not appropriate for those with “below normal intelligence”, and the Claimant’s full-scale IQ has been assessed as falling in the Borderline range, and; the difficulties which the Claimant stated that he had with his memory, including scant childhood memories save for a period of time within the care system.

The 3^rd Parole hearing was due to take place on 29 June 2016, and at that hearing the Defendant heard from a number of witnesses, including Mr Davison, Ms Lemdani, and the Claimant. However, in its written decision dated 5 July 2016, the Defendant stated that,

“It was concerned that the issue of personality disorder had not been sufficiently clarified or understood to enable it to make a full and thorough risk assessment in your case. It understood the reasons for Mr (sic) Lemdani’s approach to your case, but considered the issues of personality disorder and the possibility of psychopathy should be revisited. The panel was aware that a formal diagnosis might not be needed in order to access a PD pathway support as she explained; but it was of the view that it was needed to fairly identify risk without unduly labelling you. A further assessment should seek to disaggregate the issues of functioning, communication and presentational style from personality traits. It should include an assessment of which personality traits you demonstrate to a significant degree, and how your personality traits might impact on risk, and should also identify the support that you might need in the community if the panel were to re-release you. In particular, the panel would wish exploration of the traits of personality disorder which research suggests might be directly related to the use of violence.”

In these circumstances, the Defendant adjourned the case, and requested a full psychological risk assessment should be provided, revisiting the issues surrounding personality disorder and psychopathy which it had outlined in its written decision.

In response to the Defendant’s request, Gillian Sutcliffe, a Chartered and Registered Forensic Psychologist, provided a Personality Assessment Report, dated 31 November 2016. She noted that Mr Davison had previously used the SARN framework to report on the Claimant’s level of static and dynamic risk of sexual offending, and that she had therefore not sought to complete another assessment of risk of sexual reoffending. She stated that as a result her report would not assess risk directly, and referred the Defendant to Mr Davison’s report.

Ms Sutcliffe echoed the difficulties which the Claimant’s circumstances presented in assessing the presence of personality disorder, which were described in Ms Lemdani’s report. She noted that the Claimant had been diagnosed with anxiety and depression, and that his diagnosis with prostate cancer appeared to be causing him stress. Moreover, that there was little independent evidence concerning his childhood and early life.

She noted that the Claimant accepted that he had slapped the main victim of his previous sexual offending on “one occasion”, and continued to provide an account of his consumption of cocaine whilst on licence which was “difficult to accept”.

Ms Sutcliffe stated that,

“Findings from the assessment are not conclusive. The evidence would suggest that some psychopathic/anti-social traits were strongly present in the lead up to and during his index offences. However given the number of responsivity issues and the lack of collateral information to corroborate evidence, it has not been possible to conclude with any certainty if these have been persistent and problematic throughout his average lifetime i.e. has this been a chronic problem, or whether it was more acute at this period of within his life. This is a limitation of this assessment, therefore caution should be applied. In addition, there appears to be an absence of some traits in recent years; therefore it could be hypothesised that this could be due to persistent and convincing change. Concern has been raised throughout Mr Wright’s time in custody about his ability to manipulate others [this is evident in his life prior to his custodial sentence]. It could also be hypothesised that his presentation during the interview was an attempt to manipulate the interviewer to skew the result in his favour. This cannot be ruled out.”

Thereafter, Ms Sutcliffe reiterated that she had not carried out a risk assessment, and instead made suggestions about matters which could be put in hand if the Claimant was released into the community.

On 27 December 2016, the Defendant issued written Panel Chair Directions, which required the attendance of the authors of all three of the psychological reports at the next review hearing.

The adjourned hearing of the 3^rd review hearing took place on 17 January 2017, following which the Defendant issued its written decision dated 17 February 2017.

The Defendant again declined to direct the Claimant’s release. In doing so it noted that,

“Formal diagnoses of personality disorder have not been completed. However, witnesses provided evidence that you exhibit some of the relevant traits which fitted with the panel’s own experience of you in the hearing which would indicate that these may be significant issues for you and of relevance to your risks. Ms Lemdani felt that a consideration of the number of traits present would suggest a high level of psychopathy: the panel accepted that to confirm that diagnosis there would need to be a proper disaggregation of your communication and responsivity issues from your personality traits. This however had not been fully resolved by the current advice available to the panel. Ms Sutcliffe did however recommend that you be given support via the PD Pathway in the future.”

The Defendant went on to conclude, that given the fair degree of consensus between the risk assessments provided by the RM2000 and the RSFA, and the Claimant’s custodial progress, the Claimant presented a high risk of sexual and violent offending, which could not be safely managed in the community.

In its written decision the Defendant also noted that,

“…the earlier hearing, in adjourning your case had directed the preparation of a full psychological risk assessment, including an assessment of personality disorder. Ms Sutcliffe confirmed that she had offered an assessment of factors relating to psychopathy (related in her view to anti-social personality disorder), and confirmed in her evidence that you met the cut-off for psychopathy, but she had not completed a global assessment of personality disorders as such. She also confirmed that she had not completed the directed risk assessment because in her view the SARN report provided by Mr Davison in effect constituted a risk assessment (although the panel noted confusingly that this endorsed an assessment of personality problems and directed the reader to this following its completion) She told the panel that she had asked for this direction to be rescinded but had heard nothing back. The panel noted nevertheless that the risk assessment it had been expecting had not been completed. It was concerned that it had been presented with three psychology reports but no overall conclusion of risk.

…

The panel would have benefited from a full risk assessment as to your personality and psychological needs, although it accepted that Mr Davison’s report went a long way in that regard.”

Following the 3^rd decision, those representing the Claimant wrote to the Defendant challenging its decision. In doing so, a number of observations were made, including the fact that all of the psychologists providing evidence at the hearing, were of the opinion that there was no further core risk reduction work to be carried out, and that consolidation work could be carried out in the community. However, the main issue which was raised was the fact that the Defendant had reached its determination in the absence of the full psychological risk assessment which it had commissioned on 5 July 2016, and that the panel should have adjourned its determination pending receipt of such an assessment.

In its written response, dated 1 March 2017, the Defendant acknowledged that the primary reason for the original adjournment of the 3^rd decision hearing was the need to obtain a full risk assessment. Moreover, that the panel’s questioning of the psychologists at the adjourned hearing was indicative of the Defendant’s concern that its directions had not been fully complied with. However, it suggested that the psychologists had commented on risk at the hearing, and that ultimately it was for the panel to determine whether it had sufficient information to make its own determination about risk, and it had considered that it did.

The Claimant was dissatisfied with this response, and commenced proceedings to judicially review the Defendant’s 3^rd decision. Although a number of grounds were raised on the Claimant’s behalf, permission was granted by Garnham J. on the basis that there was a properly arguable case that the Defendant erred in not granting an adjournment.

Although his written skeleton argument was more wide-ranging, at the hearing, Mr Sood, on behalf of the Claimant, confined his submissions to the ground upon which permission had been granted, namely that the Defendant’s 3^rd Parole decision was vitiated by its failure to further adjourn the hearing of the 3^rd review, pending the preparation of a full psychological risk assessment.

Mr Sood acknowledged that on the evidence available at the adjourned hearing, he could not properly challenge the Defendant’s assessment of risk. However, he submitted that if the panel had further adjourned the hearing for a full psychological assessment, then this may have altered the Defendant’s assessment in the Claimant’s favour. Although he acknowledged that those representing the Claimant had not applied for a further adjournment, he pointed out that it was the Defendant itself which had commissioned the preparation of a full psychological risk assessment, and submitted that the written decision disclosed the Defendant’s continuing concern that such an assessment was not available.

In relation to the proper approach for this court to take as to whether judicial review should be granted, where it is submitted that procedural errors have led to evidence not being considered by a decision maker, I was referred to R (on the application of Mierek Weszka v The ParoleBoard [2012] EWHC 827 (Admin) in which HHJ Gilbert QC, as he then was, quoted Purchas LJ in Simplex GE (Holdings) Ltd. v Secretary of State for the Environment [1988] 3 PLR, at page 42,

“It is not necessary for [the claimant] to show the minister would, or even probably would, have come to a different conclusion. He has to exclude only the contrary contention, namely that the minister necessarily would still have made the same decision.”

In this regard, the Claimant has obtained a Forensic Psychology Report from Dr Ruth Tully, dated 7 May 2017. She has undertaken extensive research work into sex offender risk assessment. She states in a footnote that,

“Structured Assessment of Risk and Need (SARN) Treatment Needs Analysis (TNA) is a framework used within NOMS and based on Thornton’s (2002) Structured Risk Assessment (SRA) model. This can be considered a useful framework upon which to guide treatment, however in the only field-based study of its effectiveness, the SARN-TNA risk groups (low, medium, high) have been found not to be predictive of sexual reconviction in treated sex offenders (Tully, Browne & Craig, 2004). This means that post-treatment risk reduction decisions should be carefully considered and should be in the context of a wider range of risk assessments.”

Dr Tully observed that psychological risk assessments are often included in parole dossiers, and that the rationale for doing so has been recently supported in a meta-analysis by Van den Berg et al., 2017, which supported the predictive properties of sex offender risk assessment tools in a review of 52 studies. Moreover, that there is emerging evidence that professional recommendations and risk assessments are being found to influence panel decision-making. Dr Tully noted that Mr Davison’s report was outdated by the date of the adjourned hearing, and that there was no valid structured psychological risk assessment available to the Defendant at the adjourned hearing, despite a direction that one should be provided.

Dr Tully concluded that,

“It is therefore my overall conclusion that in this case, had an adjournment been made for a psychological risk assessment, it is not inevitable that the panel would have come to the same decision. It is entirely possible that a different decision could have been reached by the panel in the light of a new and up to date psychological assessment of risk and the resulting recommendation of the professional conducting the said risk assessment.”

Miss Ward, on behalf of the Defendant, points out that the task set for the psychologists, to determine whether and to what extent the Claimant was suffering from a personality disorder, was complicated by the various factors which both Ms Lemdani and Ms Sutcliffe identified in their respective reports; such that they were unable to properly identify the nature and extent of the risk factors which were required to be managed in the community. She submitted that, in the light of this, it was for the Defendant to decide whether it had sufficient evidence to reach a proper decision, and it is apparent that it considered it did. Moreover, on this occasion the panel had a psychologist member, such that considerable weight ought to be given to its assessment of the situation.

Given the serious nature and circumstances of the index offences, it is unsurprising that at earlier stages of the Claimant’s custodial history the Defendant concluded that it was not satisfied that it was no longer necessary for the protection of the public for the Claimant to remain in custody; a view which reflected the contemporary risk assessments which had been undertaken with the Claimant.

However, since that time the Defendant was aware that the Claimant had undertaken risk reduction programmes, and it was necessary for it to understand the extent to which, if at all, this had not only identified the relevant risk factors in the Claimant’s case, but also the extent to which these had been able to be addressed and reduced by the Claimant’s attendance on these programmes, and thereafter managed in the community.

It may be envisaged that this was one of the underlying reasons for the Defendant’s directions dated 7 July 2015, which included the preparation of a psychological assessment as to whether the Claimant has a personality disorder which affected both his offending behaviour and the assessment of his risk of serious harm. Inevitably, if the Claimant does have an underlying personality disorder, particularly psychopathy, then not only is his current risk likely to be significantly increased, but it may make it more difficult to manage in the community.

Undoubtedly, although the report from Mr Davison provided further information about risk, neither that report, nor that by Ms Lemdani, provided the requested psychological assessment; a matter recognised by the Defendant at the original 3^rd review hearing on 29 June 2016. Hence the adjournment of the hearing, and its direction for a full psychological risk assessment relating to these issues, and, particularly, the Claimant’s risk of violence.

The Defendant clearly found itself in a difficult position at the adjourned hearing on 17 January 2017, when it was appreciated that not only had Ms Sutcliffe felt unable, for the reasons which she set out, to provide a definitive diagnosis as to whether the Claimant has a personality disorder, but she had not provided a psychological assessment of risk, due to the presence of Mr Davison’s report.

Faced with this position, the Defendant decided to continue with the adjourned hearing, rather than pursuing what would have been the only other course, of further adjourning the review hearing; a course which I note was not suggested by those representing the Claimant at the time.

During the adjourned hearing, it is apparent, from the written decision, that all three psychologists gave evidence, and it would appear that, not only did Ms Sutcliffe express the view that the Claimant, “met the cut-off for psychopathy”, but Ms Lemdani expressed the view that a consideration of the number of traits present suggested that the Claimant suffered from a “high level of psychopathy”. The Defendant accepted these views, and went on to state that they fitted in with its own experience of the Claimant at the original hearing.

Furthermore, as the Defendant pointed out in its pre-action response, the psychologists commented on risk during the adjourned hearing, and it is apparent from the written decision, that they reached, what was described as, “a fair degree of consensus”, that the Claimant was, “assessed as posing a high risk of harm to the public and to known adults, in particular vulnerable women, specifically sex workers.” The Defendant also alluded to the risk assessments contained in Mr Davison’s report, and concluded by stating that,

“Based on your offending history, including the nature and seriousness of the index offences, your custodial record and progress, and the circumstances of your recall, the panel concluded that these were realistic assessments of risk in your case.”

It is of course essentially for the Defendant to decide upon its own procedures; albeit these must provide for the basic requirement of ensuring that a prisoner is enabled to have a fair hearing, and the question of fairness has to be determined in the light of the circumstances pertaining to the hearing; in particular the importance of the issues at stake, R(West) and R(Smith) v Parole Board [2005] UKHL 1, and R(Osborn and Smith) v Parole Board [2010] EWCA Civ 1409). In that regard, it is necessary to take account of the fact that decisions such as the present, involve individual liberty.

As Mr Sood acknowledged, the assessment of risk is essentially the task of the Defendant, and a court will be slow to interfere with such an assessment, provided it is satisfied that the Defendant has taken account of all relevant evidence, and not taken account of irrelevant considerations. Neither of which is alleged to be the situation in this case.

Furthermore, in the present case, it is particularly significant that the panel, at both the original and adjourned hearings of the 3^rd review, included a psychologist member; such that the Defendant is entitled to particular regard for its decision concerning the psychological assessment of the Claimant, the risk posed by him, and its ability to be managed safely in the community.

Although I was initially attracted to the submission made by Mr Sood that, at the commencement of the adjourned hearing, the Defendant should have further adjourned their review for it to be obtained, not only is it noteworthy that no submission was made to this effect on behalf of the Claimant, but more importantly I consider that, as all of the instructed psychologists were present, and the panel included a psychologist member, it was entirely reasonable for the Defendant to decide to proceed to hear the evidence, and then decide whether it had sufficient evidence to enable it to make a proper determination as to risk.

Once having done so, it is apparent from the Defendant’s written decision, that not only were the psychologists, who gave evidence, of the opinion that, although a formal diagnosis had not been made, there was significant evidence available to the effect that the Claimant suffers from psychopathy, but that the Claimant poses a high risk of harm to the public, and particularly vulnerable women. Moreover, that the Defendant’s own assessment of the Claimant’s presentation at the initial hearing chimed with the psychologists’ views in relation to the issue of psychopathic traits, and the Defendant accepted their views as to the nature and level of risk, which was consistent with that provided in Mr Davison’s report, the index offences, and the Claimant’s custodial history.

Although Dr Tully makes some critical observations as to Ms Lemdani’s original decision not to carry out a formal diagnostic assessment as to whether the Claimant suffers from a personality disorder, there is no criticism of the opinions which the psychologists expressed at the adjourned hearing, and no other evidence to the effect that they were not entitled to provide the opinions which they did. Moreover, although Dr Tully’s research may question the predictive nature of the SARN RSFA, it is apparent from the Defendant’s written decision that this was only one piece of evidence to which it had regard, and that it was the evidence provided by the psychologists about risk which was crucial to the Defendant’s decision. Once again, there is no evidence to the effect that the psychologists were not entitled to reach these opinions.

I of course appreciate that it would be for the Defendant to satisfy me that, if the panel had further adjourned the hearing of the review, and obtained a psychological risk assessment, the Defendant would still have made the same decision. In this regard, and for the reasons which I have already explained, I do not consider that such an adjournment was necessitated in this case, as by the end of the hearing of the adjourned review, the Defendant had available sufficient evidence upon which it was able to make an appropriate determination about risk.

Moreover, the observations which are made by Dr Tully in her report, are really to the effect that not only may assessments like those to be found in Mr Davison’s report be unpredictive, but they were reached at a time before the further psychological assessments had been made. As I have already observed, not only is it apparent from the written decision, that the Defendant’s main reliance was upon the views on risk expressed by the psychologists, but the same criticism of lack of currency cannot be made of their views.

Although it is correct that, due to the history of this matter, the Defendant did not have a structured psychological risk assessment, beyond that contained in Mr Davison’s report, the necessity or otherwise for this was a matter for the Defendant, which in the event considered that the evidence provided by the psychologists was sufficient for its purposes. In reality, there was a significant body of evidence which had been gained both by Mr Davison and Ms Sutcliffe, upon which the psychologists were entitled to rely to reach their opinions, and Ms Sutcliffe had only drawn back from making a formal diagnosis for the reasons which she explained in her report. It is also of significance, that the Claimant was represented at both the initial and adjourned hearings of the 3^rd review, and was able to challenge the views expressed by the psychologists.

Moreover, it is apparent from the written decision, that the Defendant’s decision was not predicated on a formal diagnosis having been made as to the presence of psychopathy, which was not required, but upon the risks arising from the personality traits which had been observed by the psychologists, including the psychologist member of the panel, together with the evidence arising from the index offences, and the Claimant’s custodial history. I also agree with the observations made by the Defendant in its pre-action response, that such concerns as were expressed by the panel in its written decision, about the non-provision of a full psychological risk assessment prior to the hearing, related to the issue of non-compliance with its directions, as opposed to any concern that it did not have sufficient evidence to make a proper determination.

In these circumstances, I am satisfied that there can be no valid criticism made of the Defendant’s decision not to further adjourn the 3^rd review hearing, and that the Claimant has not suffered unfairness as a result. Accordingly, the application for judicial review is refused.