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

The claimant had in 1986 attempted, as an agent of the Syrian Government, to place a bomb aboard an El Al 747; it was described by the then Lord Chief Justice as a foul and horrible act of terrorism. The plot was foiled. He was arrested and sentenced to 45 years imprisonment, a term of imprisonment that expires in 2031. Under the applicable legislation, he became eligible for parole in 2001 and must be released on parole no later than 2016. His application for parole was considered by the Parole Board. In 2009 it recommended his release on terms that he was immediately deported to Jordan. He was one of the handful of prisoners remaining in a category of prisoners where the Secretary of State for Justice has under the applicable legislation to make the decision whether to release on parole. The Secretary of State decided not to release the claimant, rejecting the recommendation of the Parole Board. In 2010 legislation passed by Parliament to remove that power from the Secretary of State took effect for the future, but that did not affect the decision made by the Secretary of State.

In these proceedings, the Secretary of State’s decision to refuse parole is challenged. It is said that the process of decision making was carried out in a way which was unfair; that the decision to reject the recommendation was not rational and that in any event the recent decision of the Strasbourg Court in Clift v United Kingdom has the consequence that he can no longer make the decision. The effect of the decision of the Strasbourg Court on these proceedings can only be determined in the Supreme Court. This court can only decide the fairness of the procedure and the rationality of the decision.

The Secretary of State was presented with papers for his personal decision in this case. The papers did not put a balanced case; they only put the case for rejecting the decision of the Parole Board and no case as to why he should accept it. Moreover, the case for rejection was drafted principally by the official who had had day to day conduct of that case in front of the Parole Board and lost. The Secretary of State was therefore not put in a position where he could properly take the decision. That is contrary to principles of justice that our law has always applied in cases however heinous a crime might be. A consequence of the unfair procedure was that the decision made by the Secretary of State was flawed, principally because it did not set out proper reasons for rejecting the finding that the claimant was a credible witness, which the Parole Board had made after hearing his evidence. That finding was central to the assessment of the future risk that the claimant posed.

His decision must therefore be quashed. The parties have requested that further submissions be made as to the consequential relief – see paragraph 113.

The background facts and legislative provisions

The crime committed by the claimant in 1986 and the sentence imposed

On 17 April 1986, the claimant, a Jordanian, had, at the instigation of the Government of Syria and with the assistance of its officials, including diplomats in London, provided to his Irish fiancée, then pregnant with his child, a bag for a journey she was to make to Israel. Unknown to her, it contained explosives in the expectation that it would be carried by her onto an El Al Boeing 747 aircraft bound from London to Israel; a timing device had been set to detonate the explosives when it was 39,000 feet above Austria with the result that the 375 people on board the aircraft would have been killed.

He was charged with attempting to place on an aircraft a device likely to destroy or damage the aircraft. He pleaded not guilty, but was convicted at the Old Bailey on 24 October 1986 and sentenced to a determinate sentence of 45 years imprisonment. In dismissing the application for leave to appeal against sentence, Lord Lane, Chief Justice, said:

“Put briefly, this was about as foul and as horrible a crime as could possibly be imagined. It is no thanks to this applicant that his plot did not succeed in destroying 360 or 370 lives in the effort to promote one side of a political dispute by terrorism.

In the judgement of this Court the sentence of 45 years imprisonment was not a day too long. This application is refused.”

On 13 November 2000, a deportation order was made against him that he be deported to Jordan on release; he did not appeal. In these proceedings he has made it very clear that he wishes to return to Jordan; it has been made very clear on his behalf that no suggestion will be made that his human rights will be infringed if he is so deported.

The legislation relating to parole

All prisoners given determinate sentences, as opposed to life sentences or sentences of Imprisonment for Public Protection, are entitled by law to parole at a point prior to the end of the sentence period. Although his 45 year sentence does not expire until 17 April 2031, the claimant must be released on parole no later than 18 June 2016.

Since the time when the claimant was sentenced, the legislation relating to parole has undergone numerous and complex changes. It is therefore necessary first to outline the position as it applied to the claimant when the decision under challenge was made in 2009:

The reference to the Parole Board

On 4 May 2007, officials on behalf of the Secretary of State, in the light of the decision in R (Clift, Hindawi and Headley) wrote to say it had been decided to refer the claimant’s outstanding parole reviews to the Parole Board. The same officials also decided to oppose his release. No Minister was involved in these decisions. The letter making the formal reference made clear that the final decision would be taken by the Secretary of State. I refer at paragraph 41 below to further details of this.

An application was made to the Parole Board for an oral hearing; this was granted on 28 January 2008. An oral hearing took place before a panel of the Parole Board on 15/16 October 2008; further assessments and information were needed. The oral hearing resumed on 12/13 May 2009. The claimant was represented by Mr Owen QC and Mr Guedalla and the Secretary of State by Mr Sharland. In the course of the hearings the claimant and other witnesses gave evidence. The witnesses included forensic psychiatrists and psychologists, as by that time it was common ground that the claimant was suffering from post traumatic stress disorder (PTSD).

On 12 October 2009 the panel of the Parole Board recommended the claimant’s release. Applying the relevant criteria to which I refer at paragraph 20 and considering the risk factors, the conclusion drawn was that the claimant “presented no more than a minimal risk to the public and his remaining risk could be safely managed.” It recommended that the claimant be released and deported to Jordan. I consider these issues in more detail at paragraphs 18 and following below.

The decision of the Secretary of State

A submission was prepared by officials in the Ministry of Justice recommending that the Secretary of State reject the recommendation of the panel of the Parole Board; the submission annexed a draft letter of reasons explaining the rejection. The Secretary of State personally considered the submission. He decided to reject the Parole Board’s recommendation and declined to order the claimant be released on parole and deported to Jordan. The reasons for rejection were set out in a very detailed letter dated 23 November 2009 from the Public Protection Casework Section of the National Offender Management Service of the Ministry of Justice.

On 8 February 2010 the claimant issued these judicial review proceedings challenging the decision of the Secretary of State; he claimed that the decision of the Secretary of State was unlawful and asked the court to order that the recommendation of the Parole Board be implemented and he be deported to Jordan (to which he had no objection, in contrast to others whom the Government has sought to deport to that state). The grounds of challenge as developed before us at the hearings were:

The decision of the Strasbourg Court in Clift and further changes in the legislation

There were, however, other developments in the case law and legislation which might have made these submissions academic:

It is the claimant’s position that he wants the two grounds advanced before us determined, but if he is unsuccessful, he wishes this court to apply the “leap frog provisions” of the Administration of Justice Act 1969 to enable the appeal on the issue decided by the Strasbourg Court in Clift to be determined in the Supreme Court.

I turn to examine the narrow issues before the court emphasising that they are issues specific to this case and to a process that will be of historic interest only. The issues cannot arise in any future recommendation by the Parole Board as the Secretary of State is bound, as a result of the bringing into force of s.145 of the Coroners and Justice Act on 2 August 2010, to follow the recommendation.

The hearing before the Parole Board and its decision

The decision to hold an oral hearing

It is necessary next to set out in more detail what happened before the Parole Board, the detail of its recommendation and the process thereafter.

As set out at paragraph 11, it was decided on 28 January 2008 to hold an oral hearing. The principles set out by Lord Slynn in R (Smith and West) v Parole Board [2005] 1 WLR 350 at paragraph 48 were applied; there were issues that could not be resolved by a review of the papers. There was then a delay as the claimant withdrew his application to attend the hearing, as he considered he had no hope of release until he was moved to a category C prison; he had wished to withdraw from the parole review, but the Secretary of State contended that the regulations did not permit this as he was a deportee. Whilst this was under consideration, the claimant was moved from a category B (Dovegate) prison to a High Security prison (Long Lartin). He withdrew his application to withdraw from the parole review. He was moved to a category C prison, The Mount, in March 2009 in the middle of the review by the Parole Board.

The applicable criteria

It was common ground before us that the panel had correctly considered the reference as applicable to the claimant as a deportee by applying what are known as the criteria in Appendix 7 to Chapter 9 of PSO 6000 the Directions to the Parole Board: Release of Determinate Sentence Prisoners made under s.36 (6) of the CJA 1991. These provide:

“The decision whether to release before [non parole date] a prisoner liable to deportation or removal from the UK should focus primarily on the need to protect the public from serious harm and the prevention of further offending.

3… the following factors… should be taken into account:

a.

The offender’s background, including any previous convictions and their pattern;

b.

the nature and circumstances of the original offence;

c.

where available, the sentencing judge’s comments and probation and medical reports prepared for the court;

d.

any risk to the victim or other persons, including persons outside the jurisdiction;

e.

attitude and behaviour in custody including offences against prison discipline;

f.

attitude to other inmates and positive contributions made to prison life;

g.

remorse, insight into offending behaviour and steps taken, within available resources, to address offending and to achieve any treatment or training objectives set out in a sentence plan;

h.

any medical or psychiatric considerations;

i.

any other information, including representations by or on behalf of the offender, which may have a bearing on risk assessment.”

The hearing before the panel of the Parole Board

The panel considered the extensive dossier, written statements and reports and oral evidence from the claimant, his fiancée in 1986 and the daughter born in 1987, political scientists, and prison officers, probation officers and offender managers, who had been responsible for the claimant at Dovegate and The Mount. Professor Thomas-Peter (Professor of Psychology at Birmingham University and Director of Psychological Services at the Reaside Clinic) was instructed by the Secretary of State, Professor Nigel Eastman (Professor of Forensic Psychiatry at St George’s Hospital, London) was instructed by the claimant. Both gave evidence. The scale and volume of the material was extensive – the papers used in the hearing filled 7 lever arch files.

The panel set out in its decision its view that that the review was unusually difficult. It set out a number of factors: problems in locating the records of the various assessments made of the claimant as he had frequently been moved; the lack of overall responsibility for co-ordinating his sentence planning and recording his progress; the absence of prior reviews by the Parole Board to which he had been entitled or any psychological assessment prior to the review undertaken by the Parole Board; the fact that he had no contacts in the UK or Jordan; the failure to diagnose his PTSD until it was diagnosed by Professor Eastman; the advice of Professor Thomas-Peter that no assessment interview should be conducted by a psychologist, psychiatrist or any other person as this would give rise to a real danger that his health would be significantly damaged.

His background and involvement in terrorism

The decision of the panel set out in detail his background and its view of the offence; it is necessary to summarise this, as in his decision letter, the Secretary of State rejected some of the findings.

His risk at the time of conviction

The panel concluded that at the time of his conviction in 1986 he was very dangerous and his risk very high – his extreme views about the enemies of Palestinians, the use of extreme violence to pursue those ends, callousness, a lack of thinking of other means for the solution of political problems, PTSD, lack of remorse and untrustworthiness.

The panel considered that his risks of re-offending had to be judged against his complex PTSD; those risks would significantly decrease if he had changed during his sentence. That sentence had been served in a high security unit until December 1997, from 1997 to 1999 in ordinary category A (when he was re-categorised for the reasons set out at paragraph 98 below) and from 1999 in a category B prison and from 2005, with the interlude to which I referred at paragraph 18, in a category B training prison; after his reclassification in December 2006 to category C, at a category C prison since 2009.

The psychological and psychiatric evidence

The claimant had been diagnosed in May 2005 by Professor Eastman as having had PTSD. In the prior 19 years of his imprisonment there had only been one previous brief psychiatric or psychological examination. Professor Thomas-Peter and Professor Eastman agreed that the prolonged and frequent events in his childhood (summarised at paragraph 23.i) above) made his PTSD complex. It was possible that it had been exacerbated by his involvement in and realisation of the consequences of his offence. The evidence of Professor Thomas-Peter (with which Professor Eastman agreed) was that any further psychological assessment gave rise to a significant risk of causing significant damage to his health.

The panel concluded that there was a disagreement between them over whether his PTSD had rendered him more vulnerable to recruitment as a terrorist. For the future, however, both were agreed that there was no significant risk of his ongoing PTSD giving rise to re-offending. There was only a low risk that he would be involved in further offending.

Professor Eastman and Professor Thomas-Peter also both agreed that in the circumstances there was no demonstrated value in using standard risk assessments for appraising his risk for the future. In addition to that evidence, there were reports from three distinguished psychiatrists (Professor Bates-Gaston, Dr Grounds and Professor Hart) of the lack of standard risk assessments for terrorists; Professor Bates-Gaston (the Chief Forensic Psychologist of the Northern Ireland Prison Service) made clear that the assessments could not in any event be reliable as the assessor could not interview the claimant and, as he was suffering from complex PTSD, he would not be suitable for cognitive risk reduction programmes. Despite this evidence, there were four risk assessments carried out, one of which was made by Ms Quilliam whose meeting with the claimant is relied on by the Secretary of State as set out at paragraph 90 below. Professor Thomas-Peter did not place any reliance on them.

Other evidence on suitability for release and the conditions of release

Five probation officers had interviewed the claimant to assess his suitability for release. Two considered he was suitable. One thought he could be released if he remained in England as a robust risk management plan could be put in place. Two did not support release.

There was extensive political science evidence on whether Syria would engage in state sponsored terrorism, whether Palestinian groups would do so and whether the claimant would have any opportunity to join in any such terrorist acts. The panel concluded that the claimant was of no use to a terrorist organisation for any terrorists activities whether such an organisation was backed by Syria, another state or a Palestinian group, because he was a Jordanian of Palestinian origin and because of his notoriety. He would be subject in Jordan to such intense surveillance that it would not be possible for him to become involved. It concluded that the claimant:

“Is very unlikely to offend again since the nature and type of offence that he committed is, in the light of these findings, very unlikely to be capable of being committed again in the future. Furthermore [the claimant] has not shown any inclination to commit terrorist offences sponsored by other states, or for other purposes or motives or for reward or acting outside the realms of state sponsored terrorism.”

If a decision was made that he be deported to Jordan, a discussion would be held with the Jordanian Government as to how to treat him. He probably would be regarded as having served his sentence and it was unlikely he would be charged with his activities in the JRM, the organisation to which I referred at paragraph 23.iii) above.

The panel rejected the contention of the Secretary of State that he should not be released because there was no adequate release plan. The Appendix 7 criteria excluded consideration of a release plan for a deportee and required consideration of the need to protect the public and the prevention of further offending after he had been returned to Jordan without the plan and supervision he would have in the UK. He had provided details of where he would live, the work he would do and the support he would receive from his extended family. There was evidence he would be subject to surveillance by Jordan.

Credibility

The panel reviewed his credibility in relation to his evidence that he had given that he had changed his beliefs, was remorseful and intended to avoid all violence in the future. This was the central issue as the evidence that he had changed was essentially based on an assessment of his credibility in the light of all the evidence before the panel.

The Secretary of State contended he had not had what his counsel described as a “Damascene Conversion”. His evidence was not truthful. The panel considered the matters relied on by the Secretary of State:

The panel concluded:

“There …, on analysis, have not been shown to be matters about which adverse inferences should be drawn. It is now known that [the claimant] is suffering from chronic PTSD and this makes it very difficult and painful for him to speak about anything that is associated with his trauma and those who have experienced apparent minimisation, evasion, or dishonesty or inconsistency in [the claimant] have, on analysis, experienced the attempts of a man suffering from chronic PTSD to explain himself. It was not known that he was suffering in this way until 2005. Since then the full effects of PTSD have not been explained to those who have dealt with him. In consequence, most of the adverse comments about [the claimant]’s apparent lack of honesty, credibility, insight, remorse and victim empathy stem from this unawareness of [the claimant]’s difficulties in expressing his feelings in a conventionally pro-social manner.”

The panel accepted the evidence that he had not since the early 1990s sought to minimize his responsibility for the attempted bombing or his involvement in terrorism.

Its overall conclusion on credibility was that the claimant had:

“with great difficulty given his circumstances, spoken honestly about his current beliefs and has demonstrated that he does have insight into his offending behaviour and both remorse and empathy for all his victims and in particular for [his sometime fiancée and her daughter]”

Its reasons for concluding minimal risk

It then set out its conclusions on the Appendix 7 criteria which I have set out at paragraph 20 above.

After setting out the risk factors (based on the evidence and views summarised above) it set out its reasons for concluding there was minimal risk:

It concluded that the claimant:

“can be recommended for release to Jordan. There is no further need to retain [the claimant] in prison in order to protect the public from serious harm or to prevent further offending. His risk of committing further offences is low and the public will be properly and adequately protected from such risk as remains. If this recommendation is accepted, the panel recommends that [the Foreign and Commonwealth Office] and any other appropriate Department notifies the Jordanian authorities in advance of his release and deportation that he is to be released and is to be deported direct to Jordan”

The rejection of the recommendation by the Secretary of State

The conduct on behalf of the Secretary of State of the review and the Parole Board hearing

In the course of the proceedings, we gave the claimant permission to amend their grounds to raise issues as to the procedure adopted in the Ministry of Justice for considering the recommendation and putting the matter to the Secretary of State for decision. Mr Gordon Davison, the present Head of the Public Protection and Mental Health Group in the National Offender Management Service at the Ministry of Justice, served on behalf of the Secretary of State in December 2010 a statement which set out the decision making process.

After the decision of the House of Lords in relation to the claimant in December 2006 (to which I have referred at paragraph 9.iv)), the decision to refer the claimant’s case to the Parole Board was taken by officials, as was the decision to oppose his release. The decision was made by Mr Alistair McMurdo, the then head of the pre-release section of the Public Protection Casework Section. The letter dated 4 May 2007 (referred to at paragraph 10 above) which made the reference was signed by Mr Hough on behalf of the Secretary of State; he was the senior case worker who had been dealing with the case since 2004 and was assigned to deal with the case once an oral hearing was ordered. He dealt with much of the correspondence with the claimant’s solicitors, the preparation of the evidence and the instructing of Mr Sharland as counsel to present the case of the Secretary of State to the Parole Board. He was present at the hearing to give instructions. Mr Davison’s evidence was that although day to day decisions were made by Mr Hough, any significant decisions were made either by officials more senior to Mr Hough, including himself, Mr McMurdo and his successor, Mr Russell A’Court.

The submission to the Secretary of State

After the panel of the Parole Board had made its recommendation, it was clear that the decision to release would be made by the Secretary of State personally, as this was a case where a Minister would want to consider the possibility of rejecting the recommendation. Mr Davison’s statement made clear that the usual practice was that decisions accepting recommendations of the Parole Board were made by officials and the case not referred to a Minister; decisions to reject were made by Ministers. Mr Hough discussed with his immediate superior, Mr A’Court, whether there were grounds for recommending to the Secretary of State that he should reject the recommendation made by the Parole Board. Mr Hough then prepared a document at the request of Mr A’Court setting out the basis on which a decision might be taken to reject the Parole Board recommendation so that Mr A’Court could consider it further. Mr Davison’s evidence was that:

“in this case there was a fresh substantive decision, made by officials who were not involved in the original decision to oppose release, taking into account the Parole Board’s recommendations and reasons. Neither should it be assumed that I would automatically accept any proposed recommendations submitted by PPCS staff or that Ministers always accept recommendations made by officials. The document that Mr A’Court asked Mr Hough to prepare was the first part of the process followed in this case and not a foregone conclusion. Before a decision is taken on the recommendation that is made by officials to Ministers in such a case, the position is considered by the Section Head (in this case Mr A’Court), by departmental legal advisers, and finally by me as Head of PPMHG. We also consulted with officials in other government departments.”

Mr Hough prepared a document setting out reasons on which the Parole Board recommendation could be rejected (if Ministers so decided) and a draft submission providing the Ministers with advice. These were then revised by Mr A’Court and then were revised again in the light of advice from departmental lawyers and other senior officials. Mr A’Court then re-drafted the submission to Ministers setting out their advice after discussion with Mr Hough and Mr Davison.

Although no application was made for disclosure of the documents submitted to the Secretary of State, Mr Swift QC, who appeared before us for the Secretary of State at the second hearing, told us, on instructions, that they comprised:

No submissions were sought from the claimant or his solicitors or counsel. The Secretary of State made his decision on the basis of the documents described in the preceding paragraph. The then Secretary of State for Justice, Mr Straw, took his decision on the basis of those documents.

In July 2010, when further representations were made by the claimant’s solicitors to the incoming Secretary of State, Mr Clarke, a submission was prepared by Mr A’Court which Mr Davison approved. The Secretary of State decided not to revisit the decision of his predecessor. As nothing material turns on these further representations, it is not necessary to refer to them further.

The decision of the Secretary of State

In the light of his decision to reject the recommendation, the letter of 23 November 2009 was sent by the Public Protection Casework Section of the National Offender Management Service to the claimant in the terms of the draft submitted to the Secretary of State. It concluded:

“The Secretary of State, having carefully balanced all the material in your dossier and the evidence given at the parole hearings, is not persuaded your risk has reduced sufficiently for you to merit parole, particularly given that, if you were to re-engage in terrorist activity, the public would be subject to a very high risk of harm.”

It then set out a summary of the reasons which it is convenient to set out after examining the way in which that decision was reached.

The approach to the decision making by the Secretary of State

It was not disputed before us that a recommendation by the Parole Board to the Secretary of State was a recommendation which the Secretary of State could reject. However it was submitted by Mr Owen QC on behalf of the claimant that in the circumstances of this particular case he should give very great weight to the Parole Board’s recommendation to release the claimant in the light of the Parole Board’s acknowledged expertise and the panel’s detailed and thorough review of the evidence; he was only entitled to depart from it if he identified errors of law or fact or additional evidence came to light. As there were none, the Secretary of State was bound to give effect to the recommendation and the court should so order.

Mr Owen QC relied on the decision of Wilkie J in Houchin v Secretary of State for Justice [2010] EWHC 454 (Admin) summarising the principles to be derived from the decisions of Irwin J in R(Hill) v SSHD [2007] EWHC 2164 (Admin) and of Jackson J in R (Banfield) v Secretary of State for Justice [2007] EWHC 2605 (Admin). Mr Sharland, who made the submissions on this part of the case on behalf of the Secretary of State, contended that the basis on which the Secretary of State could reject a recommendation was not as narrow; in contrast to other legislative provisions (such as those referred to in R v Housing Benefits Review Board [2001] 1 WLR 545 and R (Manchester City Council) v Secretary of State for the Environment [2007] EWHC 3167 (Admin)), s.35 (1) did not require the Secretary of State to have particular regard to the recommendation of the Parole Board. He contended that the principles were correctly summarised by Kenneth Parker QC (as he then was) in R(Black) v Secretary of State for Justice [2007] EWHC 1668 Admin at paragraphs 72-73 of his decision:

“[s.35(1)] contemplates the Secretary of State making his own assessment of the risk, taking account no doubt of the recommendation of the Parole Board, and that he then makes his own decision. Nothing in the section precludes the Secretary of State from rejecting the assessment of the Parole Board, so long as his assessment of the risk is rational and not otherwise vitiated by legal error. Risk assessment is plainly not an exact science; there is no demonstrably unique “correct” answer, and even people with the relevant expertise and experience may reasonably reach different assessments….

No restriction or limitation is imposed by that section on the SSHD’s power of rejection”.

The Parole Board is expert in the assessment of risk and immunised from external pressures. The assessment of risk, by the application of publicly promulgated criteria, is a task with no political content. The panels that carry out the work operate in a manner much like a court, sifting and analysing the evidence, and when there is an oral hearing making relevant findings on disputed issues which could not be resolved by a review of the papers. The task is not one to which the Secretary of State can bring any superior expertise: see the judgment of Lord Bingham of Cornhill at paragraphs 23 and 33 of Clift. The removal by Parliament of the Secretary of State’s last remaining power to reject a recommendation is confirmation by Parliament that the Parole Board is the appropriate body to take these decisions and the Secretary of State has no superior expertise.

However, at the time of the decision under review the decision maker under the statutory scheme remained the Secretary of State for these few prisoners. He must therefore have been entitled to come to his own conclusion on the assessment of risk provided he did so by a process which was fair and the decision was rational. As Mr Owen QC accepted, he had some expertise, though not superior expertise. I cannot accept that he was only entitled to reject the recommendation on the narrow grounds suggested by the claimant, particularly given that assessment of risk is, as experience has more clearly shown over the years, a task of great difficulty where those entrusted with it can reasonably differ.

It is self evident that he should and would accord weight to the recommendation of the Parole Board. However the weight the Secretary of State should accord to the recommendation must depend on the matters in issue, the type of hearing before the panel, its findings and the nature of the assessment of risk it had to make. The grounds for impugning the decision he makes which does not follow the recommendation must depend on the fairness of the way in which he approached his decision making in the light of the foregoing and whether the decision has a rational basis.

The matters in issue

The principal issues that the panel considered and which were re-considered in the Secretary of State’s decision letter can be summarised as follows:

At the heart of the Secretary of State’s decision was the rejection of the panel’s findings on the claimant’s credibility and the substitution of his own finding on credibility, as the finding on credibility was central to the assessment of risk.

The fairness of the process through which the Secretary of State made his decision

I therefore first turn to consider whether in the circumstances of this case the procedure, as set out at paragraphs 48 to 52, that led to the decision made by the Secretary of State was fair.

The submissions made by the parties to this court on the fairness of the procedure

The submissions advanced to us in relation to that approach can be briefly summarised:

The approach to the finding on the claimant’s credibility

I have set out at paragraph 53 the matters which it appears from the Secretary of State’s letter (as clarified in the hearing before the court) were the principal points on which issue was taken with the recommendation of the Parole Board.

In approaching these issues, it is, in my view, necessary for a clear distinction to be made between findings of fact made by the Parole Board panel and its assessment of the risk. The findings of fact related to his credibility, the effect of his PTSD, and the reasons for his failure always to cooperate with the risk assessment process. These were all matters on which decisions had to be made on whether the claimant was telling the truth in the light of all the evidence.

The claimant’s credibility was the central issue as the finding on the credibility of the claimant was, if not decisive, of significant weight in determining his future risk. In the closing submissions to the panel made on behalf of the Secretary of State in opposition to the grant of parole, the importance of the credibility of the claimant was made clear:

“The lack of reliability in [the claimant]’s evidence is crucially important because, in reality, the only real evidence for [the claimant]’s apparent change of view which allegedly took place in the early 1990s, is his self reported conversion.

.....

The Secretary of State suggests that, in the absence of credible expert evidence that [the claimant]’s risk of re-offending has been substantially reduced, his evidence about his change of outlook is fundamental. Unless the Parole Board reaches the conclusion that [the claimant]’s evidence is reliable, there is no, or no adequate, basis for concluding that he has sufficiently reduced the level of risk.”

In my view, the Secretary of State, when making the decision on parole, also had to distinguish between the findings of fact made by the panel and the assessment of risk. The findings of fact were the basis on which the Secretary of State was entitled to reach his own view, using the Appendix 7 criteria, to determine risk, according appropriate respect to the views of the panel on their assessment of risk.

In a case where there had been an oral hearing, very good reason was needed to depart from the findings of fact made by the panel that has seen the witnesses, particularly the claimant. The oral hearing had been ordered (as explained at paragraph 19) because issues could not be resolved by a review of the papers. The importance of seeing the witnesses was a point forcibly made to the panel by the Secretary of State in his submission in June 2009 at the conclusion of the evidence:

“Whilst the Board have notes of the evidence, such notes do not record [the claimant]’s demeanour during cross examination. The Secretary of State suggests the tone and content of his evidence give rise to real concerns. At times he was threatening; for example, when counsel for the Secretary of State asked him about the motivation for the offence, he suggested that counsel “should be careful what he said”. ..... In sum, after witnessing [the claimant]’s evidence, an observer would have real concerns about the safety of releasing him into the community leaving aside the difficulties with the substance of his evidence.”

There is strong authority relating to appeals from decisions from trial courts which makes clear that findings of facts or on credibility should not be overturned without good reason: see Owners of Steamship Hontestroom v Owners of Steamship Sagaporack; Same v Owners of Steamship Durham Castle [1927] AC 37; Thomas v Thomas [1947] AC 1984; Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep. 403; The Ocean Frost [1986] 1 AC 717 and Powell v Streatham Manor Nursing Home [1935] AC 243. As Viscount Sumner said in The Hontestroom:

“What then is the real effect on the hearing in a Court of Appeal of the fact that the trial judge saw and heard the witnesses? I think it has been somewhat lost sight of. Of course, there is jurisdiction to retry the case on the shorthand note, including in such retrial the appreciation of the relative values of the witnesses, for the appeal is made a rehearing by rules which have the force of statute: Order LXVIII., r. 1. It is not, however, a mere matter of discretion to remember and take account of this fact; it is a matter of justice and of judicial obligation. None the less, not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case. The course of the trial and the whole substance of the judgment must be looked at, and the matter does not depend on the question whether a witness has been cross-examined to credit or has been pronounced by the judge in terms to be unworthy of it. If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge's conclusions of fact should, as I understand the decisions, be let alone.”

In this case, the Secretary of State was the primary decision maker and not, as in the cases to which I have referred, an appellate court. Yet it is difficult to see why such principles are not applicable to circumstances such as this case where the Secretary of State has not seen the witnesses. In my view therefore good reasons were necessary for him to reach a different decision on credibility.

Whether there were good reasons depended on whether circumstances permitted the Secretary of State to undertake a detailed examination of the evidence and whether he could properly justify a different conclusion. In considering whether he could do so, he should have asked himself the type of question posed by Lord Shaw in Clarke v Edinburgh Tramways Co 1919 S.C (HL) 35 cited by Viscount Sankey in Powell v Streatham Manor Nursing Home [1935] AC 243:

“Am I - who sit here without those advantages, sometimes broad and sometimes subtle, which are the privilege of the Judge who heard and tried the case - in a position, not having those privileges, to come to a clear conclusion that the Judge who had them was plainly wrong? If I cannot be satisfied in my own mind that the Judge with those privileges was plainly wrong, then it appears to me to be my duty to defer to his judgment.”

There were two circumstances which were of particular importance:

As the Secretary of State would have to reach a decision not merely on the assessment of risk but on whether to accept the findings made by the panel on the issue of the claimant’s credibility, it was essential that the procedure to enable him to make the decision was adequate and fair.

The procedure by which the Secretary of State was enabled to make the decision

The decision maker was the Secretary of State personally

Before considering the adequacy and fairness of the procedure, it is important to distinguish the position of the Secretary of State as the head of the Department of State in whose name the work of the Department is carried out and decisions frequently made and his position as the person actually making the decision in this case. It was initially submitted that as s.35(1) required the Secretary of State to take the decision on release, the statute permitted the Secretary of State personally to argue against release before the panel and then personally to decide the issues; the legislative assumption was that he had an open mind and could do both. It was submitted accordingly that the challenge to the decision making process should therefore be dismissed.

This initial submission took no account of reality and was not pursued by Mr Swift QC. It is plain that the case was advanced before the panel in the name of the Secretary of State by his officials acting quite properly without reference to him under the principles in Carltona v Commissioners of Works [1943] 3 All ER 560. The Secretary of State had no involvement in it. On the other hand the decision made by the Secretary of State was his own decision; the principles in Carltona did not apply. Looking at the reality of this case, it is not necessary to determine whether it would be permissible for the Secretary of State personally to conduct the case before the panel (by giving directions as to its detailed conduct) and then make the decision under s.35(1). This does not for obvious reasons happen; I do not believe it would be permissible, but it is not necessary to express a concluded view on whether the legislation (which shortly will be a matter of history) permitted it.

If the decision under s.35(1) had been made under Carltona principles by officials, it would plainly have been impermissible for the officials to have been involved both in making a case against release and as part of the decision making process under s.35(1) on whether to accept the recommendation on release which they had fought so hard to prevent. It was accepted if the decision under s.35(1) was to be made by officials under Carltona principles, that there was no reason that the decision making process within the Department could not have been so organised so as to separate out the functions of advocating that the claimant should not be released from the functions relating to the decision as to whether he should be released. This has been done in many bodies such as the General Dental Council and the Disciplinary Procedures of the Bar in consequence of decisions in respect of those bodies in Preiss v General Dental Council [2001] 1 WLR 1296 and P v General Council of the Bar [2005] 1WLR 3019 respectively.

The need for a balanced submission to put the Secretary of State in a position to decide the issues, particularly the finding on credibility

A court or other body, considering whether to accept findings of fact by a person who had seen and heard the witnesses, would review the transcripts against the documentation and reports. In this case such a review faced the formidable difficulties I have explained at paragraph 61. It was therefore necessary to give careful consideration to a fair procedure which would enable the Secretary of State to be put in a position to consider if he should overturn the findings on credibility by those who had seen the witnesses and then proceed on the basis of his conclusion on credibility to assess the risk.

In his submissions to us, Mr Swift QC submitted that the court should consider what fairness required as being the determining factor. He referred us to the passage in the speech of Lord Diplock in Bushell v Secretary of State for the Environment [1981] AC 75 at 95 where he was considering what was required in the context of an administrative scheme relating to traffic:

“In exercising that discretion, as in exercising any other administrative function, they owe a constitutional duty to perform it fairly and honestly and to the best of their ability…

What is fair procedure is to be judged not in the light of constitutional fictions as to the relationship between the Minister and the other servants of the Crown who serve in the Government Department of which he is the head, but in the light of the practical realities as to the way in which
administrative decisions involving forming judgments based on technical considerations are reached.”

In my view Mr Swift QC is correct. Fairness is the determining factor, but context is critical. In R v SSHD ex parte Doody [1994] AC 531 the House of Lords had to consider what fairness required in fixing a tariff for indeterminate sentences; Lord Mustill addressed the question of what fairness required in the context of that particular decision making process at pages 559-563. We were provided with a note, after the conclusion of the hearing, in relation to the procedures for prison adjudications where a change has been made to deal with the unfairness of the decision maker being able to make submissions to the Secretary of State as to why his decision should be upheld. I do not think that this assists. What fairness requires depends on the context; that question of fairness has, in my view, to be considered in relation to the procedure required under s.35(1) in this particular case.

In considering what is fair, it is clear from Bushell that the Secretary of State could rely on the collective knowledge of his Department and, as long as no new matter arises, what is placed before him by his officials is not a process that generates the need for further representations from the claimant.

However, in the circumstances of this case, fairness required that his officials put the issues to him in a balanced way so he could arrive at a decision that had a rational basis. That was essential unless he was to spend some days, given the nature and quantity of the documentation, reading and considering the material himself. He could not rely, if he was to follow what a fair procedure dictated, upon a document which set out only the case for rejection of the panel’s decision.

It was contended that the panel’s decision spoke for itself; in one sense it did in the sense that a document in the form of a judgment sets out its reasoning and conclusions. But if a case was to be made, as was plainly made in the draft decision letter, for its rejection, there needed to be included in the submission the countervailing arguments that showed why the draft letter might be wrong. It would be wholly unrealistic to expect the Secretary of State to devote the very substantial period of time required, measured in days, to carry out that analysis himself, as it involved a detailed review of the evidence to see if the points made in the decision letter, replete as it was with references, were well made.

The way the case was presented to him therefore did not put the Secretary of State in a position where it would be possible for him, acting fairly, to take a different view on credibility, and make a rational assessment of risk. What was therefore needed to make the decision making process fair was a document cross-referenced to the documentation before the Parole Board which demonstrated that there was an evidential basis for their findings and showing why the points made for rejecting the finding on credibility and the assessment might be misconceived. Although the analogy is not exact as the Secretary of State is the decision maker and not an appellate body, the process of asking the Secretary of State to reject the recommendation of the panel with a one sided submission would be analogous to asking the Court of Appeal to overturn a finding on credibility set out in a judgment with only an argument from the appellant.

The participation in the process of those who had sought to persuade the panel that the claimant was deceitful and should not be released

There was, however, an added element of unfairness in addition to the deficiency in the procedure which rendered it unfair.

Although the submission to the Secretary of State had been re-drafted by Mr A’Court and agreed by Mr Davison, the original draft of the submission was also prepared by Mr Hough. The fact that it was re-drafted by Mr A’Court did not materially affect the position, as he was the person who made the significant decisions in relation to the case in the period during which it was before the panel. More important, however, was the fact that the draft decision letter had been prepared by Mr Hough who, acting under the instructions of Mr A’Court (from July 2008), had been the principal person advocating that the claimant should not be believed. The letter is a detailed and carefully constructed document which must have taken a very substantial period of time even by someone who knew the documents, given the details into which it goes and the references it contains. The letter may have been reviewed and amended in the light of comments by those to whom Mr Davison refers, but the draft must have remained substantially the same given the detailed nature of the document.

It was this involvement of Mr Hough and Mr A’Court which added to the unfairness of the procedure.

In the argument before the court, the involvement of the same officials in opposing the release before the panel and in the decision to reject the recommendation was advanced on the basis of predetermination and participation of the decision maker in the process in another capacity: the court was referred to cases such as R v Kent Police Authority [1971] 2 QB 662 (use of the same doctor who had given evidence in disciplinary proceedings about a police officer to certify he was disabled for the purpose of retirement regulations), R v SSHD ex p Chapman (18 October 1994) (prosecuting counsel who became the Lord Chief Justice should not set the tariff of the person convicted) and Condron v National Assembly for Wales [2006] EWCA Civ 1573 (the pre-meeting casual comment of the chairman of a planning decision committee that he was “going to go with the report of the inspector” indicated a legitimate predisposition rather than an illegitimate predetermination). The court was also referred to passages in the speeches in R v SSHD ex p Oladehinde [1991] AC 254 at page 282 and 303 where there was discussion of the impermissibility of delegating to the same official functions where he might have to make a decision in a matter in which he had been involved or had an interest.

This case does not easily fit within the existing authorities, but what was required was fairness. The Secretary of State had not, as the person who made the decision, participated in the process earlier; his officials had done so. The Secretary of State plainly had an open mind. The officials who had a key role in making the submission to him did not. Given the way in which a Department of State must operate, there could be no possible objection to officials acting as advocates to oppose release in the name of the Secretary of State before the panel, even though it was the Secretary of State who had to take the decision. However, when the Secretary of State came to make that decision personally, as he did in this case, the materials had to be presented to him fairly; it was difficult for those who did not have an open mind to do so, particularly where it is clear that it was believed by at least one of them that the claimant was deceitful. Unless submissions were to be made to the Secretary of State by both the claimant and by the officials who had advocated opposition to the release, it was intrinsically unfair to allow those who had advocated opposition to be involved. It gave the process, to the eye of the fair minded and informed observer, given the way in which it was conducted, an added unfairness.

It is, in my view, sufficient to vitiate the decision made by the Secretary of State that the decision was reached in the way described. But it is, I think, important to see how the process resulted in a decision that itself cannot be sustained as having a rational basis, particularly in relation to the rejection of the finding on credibility and the substitution of his own finding.

The way in which the findings of the panel on credibility were rejected by the Secretary of State and his own findings substituted

I therefore turn to examine the way in which the Secretary of State approached each of the issues. I will consider first the findings on credibility – his general credibility, PTSD and alleged failure to cooperate with the risk assessment process.

General credibility and (ii) PTSD

The claimant’s credibility depended on an assessment of his evidence in the light of the other evidence and his PTSD. Those who saw him reached a clear finding. It is therefore necessary to examine the reasons why the Secretary of State considered he was able to reach a different finding on general credibility. The Secretary of State’s reasons for making his own finding that the claimant lacked veracity and rejecting the panel’s finding can be grouped under five headings.

The first reason for his conclusion that the finding of the panel should be rejected and his own finding substituted was that the panel had not paid sufficient attention to the deceit surrounding the claimant’s offending. He found that the claimant had lied to the police in his interview, lied at trial by giving two different false accounts and lied to his fiancée; that he had demonstrated his deceit by using a false Syrian passport under a false name, by his denials in relation to the membership of the JRM, the DAGB bombing and in smuggling a letter out of prison to his cousin.

The difficulties in the Secretary of State’s approach can be illustrated by two examples without overburdening the length of this judgment.

Lies to Professor Eastman and probation officers

The second group of reasons relied on were what were said to be lies to Professor Eastman and to probation officers. The Secretary of State in his decision letter stated it was a particular concern that the evidence showed the claimant had not been truthful to those responsible for providing reports for the parole review.

Although he relied on a number of examples, the difficulties with the approach of the Secretary of State can be illustrated by examining two examples relied on in relation to statements made to Professor Eastman.

The Secretary of State also relied upon the claimant’s statement to a probation officer, Mr Draper, made during the course of a parole assessment report in August 2005, as an example of the claimant not being truthful to probation officers. In the decision letter the Secretary of State stated that the claimant gave Mr Draper various reasons why he was not the author of the letter sent to his cousin Mr Awani Hindawi in 1986 to which I have referred at paragraph 23.x); that statement to Mr Draper was a lie, as in his statement and his oral evidence he had admitted writing it. However, it is clear from reading the report of Mr Draper that the claimant told him that he remembered writing and smuggling a letter in which he thought he had been asked to be exchanged for other prisoners, but doubted that the particular letter was the one he had written. He had added that he would not have suggested a kidnap. He thought the English translation was poor. Mr Draper’s report says that the claimant could not recognise the Arabic handwriting as his own as the copy was poor. In my view reliance on this particular point by the Secretary of State was made without the analysis of the documentation a person wishing to depart from findings on credibility would be expected to make; an analysis of the report of Mr Draper would have shown that there was no bare denial that could amount to a lie.

The interview with a Guardian journalist in 1996

The third matter on which the Secretary of State relied was the interview with the Guardian journalist to which I have referred at paragraph 34.iii)c). The Secretary of State contended that the evidence given at the oral hearing in relation to the interview was further evidence of deceit on the claimant’s part. The claimant had told the panel he had lied to the journalist by telling him many untrue things and that some of the answers could be attributed to contemporaneous statements by an MP. In fact the MP had died before 1996. The panel, who heard his evidence, said that he was unable to open up to the journalist and merely agreed with everything that was said. The article had only been produced at a late stage in the review and there was no reference to the article or his reported statements exonerating Syria prior to that. The panel found that the visit was contrary to prison rules, it must have involved subterfuge and the suggested answers given by the claimant, insofar as they were accurately reported, were explained by the claimant as being given because he was so suspicious of the journalist and was not wanting to do other than agree with whatever was suggested to him. I accept that Professor Thomas-Peter stated (as recorded in the notes summarising the oral evidence) that the claimant had shown a willingness to say what was not true, and gave as an example his evidence in relation to the journalist. However, it seems to me that it is very difficult to see how the Secretary of State who did not see the witnesses and without a close analysis of the documents could come to a different finding from the finding reached by the panel; the reasons he gives for doing so are not adequate. It is also of importance to note that it is said that Professor Thomas-Peter’s evidence expressed concern about the negative impact of the claimant’s lies on an accurate psychological assessment; what the note of the evidence actually said is:

“[Professor Thomas-Peter] would question the value of psychological assessments in this case. [The claimant] has a negative mindset, he believes that those who come to interview him have a negative view of him. This is not impossible to overcome but what validity could be ascribed to that long process in the knowledge that he has been required to do so. [Professor Thomas-Peter] is concerned at the damage that could be done to [the claimant].”

The note does not justify the comments in the Secretary of State’s letter.

The fourth matter on which the Secretary of State relied was that the claimant had accused others of lying in his evidence during the parole hearings. He relied on the note of the claimant’s cross-examination which recorded that when Victoria Quilliam, an official with the OASys unit of NOMS to whom I referred at paragraph 78.i), came to see him he was ill. He asked her to help him get his medication but she had said, no, she could not help him. She had told lies to the Parole Board in her evidence. It was because he was ill that he could not see her, he had asthma. The Secretary of State also relied upon the claimant’s cross-examination about a visit by Robert Cheetham, an officer of HMP Dovegate who had recorded in an e-mail that he had been to see the claimant and told him that Professor Thomas-Peter was there and the claimant had told him to go to hell. The claimant is recorded as having answered that this was a pure lie and that he had not seen Mr Cheetham. The Secretary of State said that he took the view that as neither Ms Quilliam nor Mr Cheetham had anything to gain by being dishonest he considered these to be yet further instances of attempted deceit on his part.

These were points that we were told had not been taken in submissions by those appearing for the Secretary of State at the hearing. The alleged deceit had occurred in 2006 in the case of Ms Quilliam and in the case of Mr Cheetham in May 2009. These were both instances of the general issue the panel had considered in relation to the effects of his PTSD. It is difficult to see how there was a proper basis for the Secretary of State relying on these matters unless he gave reasons which took into account the PTSD and explained why they had not been taken before the panel which had to make a finding on his credibility.

The effect of PTSD

The Secretary of State expressed the view that although symptoms of PTSD were set out in the dossier and in the panel’s recommendation, what was set out did not, significantly, include an inability to tell the truth. He concluded:

“In sum, the Secretary of State does not consider, as does the Panel, that the inconsistencies in your evidence are attributable to PTSD, as deceit is not said to be one of its symptoms. Rather, the Secretary of State, considers there is evidence you have sought to mislead not only the panel, but also report writers assessing your risk, including an expert instructed on your behalf (Professor Eastman). Because of this, the Secretary of State considers little reliance can be placed on your self report. He notes too with particular concern, that deception was a major element in your offending behaviour, involving as it did subterfuge and repeated lies, and is therefore very relevant to the assessment of your future risk.”

It is also clear from the notes of Professor Thomas-Peter’s evidence that the Professor also concluded that the claimant did not always tell the truth, as I have set out at paragraph 89.

It was nowhere asserted by the panel that a symptom of PTSD is to tell lies. However, what the panel did say was that in assessing his evidence (as I have set out at paragraph 32) the effects of PTSD had to be taken into account. Therefore, when the claimant said things which appeared inconsistent and gave explanations that did not make sense, the effects of PTSD had to be taken into account. A simple assertion that lying is not one of the symptoms of PTSD was therefore no proper answer to the analysis and finding of the panel. A rational basis for rejecting the finding of the panel would require the Secretary of State to set out in relation to the specific instances on which he relied whether the effects of PTSD on the explanations given by the claimant, might explain his answers as not being deceitful and whether the advantage derived by the panel from seeing and hearing the witnesses could not be sufficient to justify its conclusion.

Alleged failure to cooperate with the risk assessment process

In the decision letter, the Secretary of State did not accept the panel’s finding that it was not reluctance on his part that was the reason why he had not been the subject of psychiatric assessment (as set out at paragraph 26 above). The Secretary of State referred to the claimant’s refusal to be assessed in Long Lartin in 2005 on the basis he had been assessed by Professor Eastman and that he refused to be assessed by Professor Thomas-Peter. He then referred to an occasion when the claimant had refused in December 2006 to be interviewed for an OASys report and an occasion when he declined to be interviewed by an Offender Manager, albeit that was during the period to which I have referred in paragraph 18 that he had withdrawn from the parole process. The Secretary of State concluded that he:

“cannot ignore the possibility you were seeking to obstruct deliberately the risk assessment process, which is behaviour unworthy of parole”.

There are three separate matters. The first is the finding that the panel made as to why he had not been assessed prior to 2005. No reasons at all are set out for the rejection of that finding. The only reason given is what happened in and after 2005 which cannot be relevant to what happened before, as the reasons he declined to be interviewed in 2005 relate to the assessments carried out by Professor Eastman and Professor Thomas-Peter. The second matter relates to what happened during the assessments by Professor Eastman and Professor Thomas-Peter. It is difficult to discern any basis for overturning the findings of fact made by the panel in relation to their evidence. The third matter relates to what happened in 2006 and 2008, after the claimant had been diagnosed with PTSD and when Professor Thomas-Peter had expressed his view, with which Professor Eastman agreed, that the claimant should not be the subject of further psychological assessment; in the light of that fact and the panel’s finding to which I have referred at paragraph 35, it is difficult to discern the basis on which there were grounds for rejecting the finding of the panel and substituting a finding that there was a possibility that he was deliberately obstructing the risk assessment process.

The decision letter does not therefore, in my view, provide a basis on which it was rational to depart from the findings made by the panel on credibility.

The way in which the other issues and the assessment of risk were determined by the Secretary of State

As I have explained, the finding on credibility was central to the assessment of risk. There were other issues which also bore on that to which it is necessary to turn. The decision on these issues also shows the effect of the unfair process adopted.

Continuing contacts with terrorist organisations

The only evidence before the panel of any contact with terrorist organisations after his imprisonment was the letter he had sent to his cousin in 1986 to which I have referred at paragraphs 23.x) and 88. The claimant’s evidence was clear. The Secretary of State, however, stated that he was unable

“to find concrete evidence to support or contradict your assertion that you broke off contact with others involved in terrorist activity when you claim to have done.”

It was accepted in the course of argument that there was no evidence at all that suggested contact; that seems to us to have been an inevitable concession in the light of the evidence given to the category A committee meeting on 9 December 1999 when the police adviser told the committee:

“There was no evidence to suggest [the claimant] retained his link with terrorist organisations. It was pointed out that the organisation he had previously been involved with had now renounced violence and was fully participating in the peace process in the Middle East.”

The court was told, after we had asked, that the Secretary of State had made no further enquiry of the intelligence services after the panel had made its recommendation.

It is difficult to see how the point raised in the letter was a basis either (i) for questioning the finding of the panel about contact with terrorist organisations or (ii) to found a ground for taking a different view on the assessment of risk. Whereas the first is a further illustration of the lack of reasons for departing from the findings of fact made by the panel, the second is an illustration of the consequences of the way the matter was put to the Secretary of State for decision.

The political science evidence

The Secretary of State rejected the panel’s view, set out at paragraph 30, that (a) he was very unlikely to offend again in a similar way and (b) that he had not shown any inclination to commit acts of terrorism. He relied for (a) on the fact that the evidence on this issue had been adduced on behalf of the claimant and on the evidence of an expert report submitted by the Secretary of State that there was the possibility of a resurgence of secularist international terrorism. In addition, basing himself on a statement in a report by one of the claimant’s experts that Israel had not stopped atrocities against the Palestinians, he concluded that, as close exposure to such atrocities appeared to have been one of the factors relevant to the claimant’s offending, further exposure to such activities might increase future risk. Furthermore that expert had been unable to discount the possibility that a militant Palestinian group would seek to recruit him or that Syria might return to sponsoring terrorism in the future. As to (b) the Secretary of State relied on evidence adduced to the panel and his interview with the police. The police interview contained a statement by the claimant that he would be looked after for bombing the El Al plane.

Although the Secretary of State accepted that it was very unlikely that the Syrians would seek to use the claimant’s services again, even if they embarked on state sponsored terrorism in the future, he concluded that what he:

“cannot rule out is the possibility you may seek, directly or indirectly, to involve yourself in , or otherwise seek to promote, further acts of terrorism against Israeli, Jewish or pro-Israeli targets, which could result in a very serious risk of harm to the public”

He based his reasoning on his view that the claimant’s prior behaviour and the attempted bombing pointed to him being a capable, determined terrorist who by means of subterfuge, deceit and manipulation almost encompassed the deaths of hundreds of innocent people. He relied also on the view of the panel that the failure of the bombing of the EL Al plane was due to the arrests in relation to the DAGB bombing rather than a lack of determination. Balancing those matters against the fact that his supervision in Jordan would minimise the opportunity, the risk was not sufficiently reduced so that his release would be appropriate.

Matters relating to an assessment of international relations and political science are plainly matters of judgement in which the Secretary of State is in a position to make an expert judgement. However, as this was only one component of the assessment of the risk of committing a future act of terrorism (which was the key issue for determination by the Secretary of State as decision maker), it was essential that the basis on which he approached the political science evidence was clear. The finding as to the credibility of the claimant was a factor of great weight which in my view the Secretary of State was not in a position to overturn for the reasons I have given and on which his decision lacked a rational basis. On its own, that fact makes it impossible to conclude that his assessment on this issue can be sustained as having a proper basis. In addition, as the Secretary of State did not have a balanced picture put before him, he was not in a position to assess whether the panel’s views on the political science evidence should be rejected or whether, as was submitted on behalf of the claimant, the test had been set too high.

The efficacy of supervision in Jordan

The Secretary of State drew a sharp distinction between a system for surveillance in Jordan (the precise form of which could not be known until he was about to be deported) which would be devoid of rehabilitative measures and the supervision and support plan that would be available in the UK with its array of measures for rehabilitation.

The Secretary of State also expressed the view that if the claimant returned as he suggested to his family (as set out at paragraphs 32 and 37.ii)) contact with his family had not inhibited his offending behaviour in the light of the letter smuggled to his cousin and his brother’s involvement in the DAGB bombing. Little was known about his relatives beyond these two individuals because evidence before the panel had shown him to be adverse to disclosing information about them. Although the Secretary of State accepted that the Appendix 7 did not include a release plan he considered he was entitled to take into account the risk management plan that would have been envisaged if the claimant had been released in the UK given that such a release plan would point to the degree of risk he would be viewed as representing to the public if released in the community in the UK. The Secretary of State concluded:

“Having taken account of all the available information, the Secretary of State considers that surveillance in Jordan is not comparable to MAPPA-monitored supervision in the UK, as the latter caters not only for surveillance and monitoring, but also for your rehabilitative needs, including accommodation; employment and training; protection for your victims (by means of licence conditions); one-to-one work at probation appointments; and, if necessary, provision for your recall to custody. There is nothing to demonstrate that such a level of supervision is available outside the jurisdiction and, given that your risk is such as to require MAPPA oversight in the UK, the Secretary of State is not satisfied it is currently manageable outside the jurisdiction.”

It seems to me that matters relating to his surveillance and supervision in Jordan are again matters on which the Secretary of State is entitled to make his own judgement, to the extent that this is a relevant factor in the light of Appendix 7. However, as was submitted on behalf of the claimant, it was well within the power of the Secretary of State to obtain much more information as to what could be done by way of surveillance and supervision in Jordan. If a submission had been put to him in a balanced manner then this would have been an issue which the Secretary of State could and would properly have considered.

Other issues

The Secretary of State also took into account in his letter the utility of risk assessment tools which the panel had considered as set out in paragraph 28, and the views of the probation officers set out at paragraphs 29 and 37.iii). It is not necessary to extend further the length of this judgment by dealing in detail with what the Secretary of State said and the approach he took. For very much the same reasons as I have already expressed in relation to the political science evidence and his supervision in Jordan, the Secretary of State was entitled, in my view, to take into account the assessments, but only in the light of the finding as to credibility made by the panel, unless there were good grounds for concluding that finding should be overturned.

The Secretary of State also took into account that the claimant might be able to undertake offending behaviour work and set out references from the evidence before the panel as to what some had said about what might be available; he appeared to reject the view of the panel that his PTSD would either rule this out or make it very difficult. The reasoning is a series of quotations from reports many of which date from a period prior to the diagnosis of PTSD; nowhere is there a reasoned rejection of the panel’s view which took the effects of PTSD into account or the evidence on this given to the panel; again this is no doubt because of the way in which the recommendation was put before the Secretary of State with a one sided submission.

The Appendix 7 criteria

The Secretary of State reviewed the Appendix 7 criteria to which I have referred at paragraph 20 and the panel’s view to which I have referred at paragraph 37. His review was based on matters most of which I have already considered and it is not necessary in my view to review this part of the decision letter as it is consequential on the matters which I have reviewed.

The summary of his reasons

He then set out the conclusion I have set out at paragraph 47 and summarised the reasons:

“In sum, he finds:

(a)

Due to your lack of veracity, he is unable to rely on your self report in relation to both your claimed rejection of terrorism and your account of your activities and motivation during and prior to the index offences;

(b)

He is not persuaded from your evidence that you have full insight into your offending behaviour or demonstrated an adequate level of remorse and victim empathy;

(c)

He does not consider the political science material persuasive evidence that your current level of risk is sufficiently low to be manageable outside the jurisdiction by means of surveillance in Jordan;

(d)

He notes only one of the four probation officers who had written reports and gave evidence at the hearing supported release. When doing so, the officer expressed concern about your evasiveness and veracity;

(e)

You are suffering from PTSD, which is said to have made you depleted over time and made you vulnerable to being recruited for the index offences. However, there is no evidence to show you have been manipulated by any others during the sentence, but that the opposite is true. The Secretary of State also notes you were a proactive terrorist and have shown yourself resistant to being influenced by others;

(f)

Your ability to deceive and manipulate others was a key feature of your offending behaviour and highly relevant to your current risk. Despite your PTSD, you have demonstrated this behaviour both during the current parole process and your sentence;

(g)

The Panel has assessed your risk at the time of the offences as being as high as it could be. There is insufficient evidence in the dossier to persuade the Secretary of State this risk has reduced significantly to the extent where it would be safe to release you.”

This summary of the reasons of the decision reached by the Secretary of State is based for the reasons I have set out on a conclusion as to credibility that had no rational basis and a rejection of the assessment of the panel that was in consequence flawed. It was reached by an unfair process that did not put the Secretary of State in a position to make a rational decision and, as the language of part of the summary reflects, where that unfairness was compounded by the participation in the process of those who had argued and lost in front of the panel.

The effect of the failures in the decision making process

The result was a decision letter that was flawed. It did not distinguish between the approach necessary in relation to the findings on credibility and the assessment of risk. As I have sought to explain, it did not set out a rational case for coming to a different view on credibility to that reached by the panel which had seen and heard the witnesses; that vitiated the assessment of risk. The result was a decision that was flawed. Mr Owen QC fairly described that letter as containing reasoning that “resurrected and favoured” the case made before the panel; he went so far as to characterise it adopting the language of Ward LJ in Condron as “blind, pig-headed adherence to pre-cast set views”. It might be fairer to describe it as more akin to a submission on appeal by a party who has lost and who resurrects on appeal those very same submissions.

The future conduct of the case

In the result therefore the decision must be quashed. The parties have requested that further submissions be made as to the consequential relief – for example whether the Secretary of State can retake his decision or whether the Supreme Court should be asked to decide the issue we cannot decide or some other form of relief. The decision as to whether the claimant be released on parole is not for this court. It is either for the Secretary of State or the Parole Board.

I agree.