Mr Justice Simon:
Introduction
- This is a claim by a prisoner, serving three life sentences, to review a decision of the Parole Board dated 16 August 2011 not to recommend his transfer to open conditions. The basis of the challenge is that in reaching its conclusion the Panel acted in breach of the rules of natural justice, in basing its decision on material which had not been deployed and reasons which had not been canvassed during the hearings, and on which the Claimant had no opportunity to address them.
Background
- The Claimant pleaded guilty in 1973 to three charges of murder, and was sentenced to three terms of life imprisonment with a tariff set at 20 years, which expired in 1993. He has now been in custody for 39 years, of which 19 have elapsed since his tariff expired. The parole review which led to the decision under challenge was the Claimant's eighth review.
- It is no part of the case advanced on behalf of the Claimant to minimise what were, on any view, exceptionally horrific crimes. Not only did he carry out sadistic, unprovoked and vicious murders, he inflicted further injuries to the bodies of his victims. In an earlier claim for Judicial Review brought against the Secretary of State for Justice by the Claimant, Silber J rightly characterised the murders as exceptionally serious, see R (on the application of M) v. The Secretary of State for Justice [2009] EWHC 768 (Admin) at [52]. They are crimes which justify the Parole Board in taking the greatest care when exercising its statutory functions.
- There has been an unfortunate history to the Claimant's desire to be transferred to open conditions. For the first 10 years of his imprisonment he was subject to the Rule 43 regime or was placed in a Vulnerable Prisoner Unit for his own protection. In 1994 the Secretary of State (at that stage for the Home Department, later for Justice) accepted a Parole Board recommendation, following the 2nd review, that he was suitable for transfer to open conditions. However, his placement in open conditions broke down due to the hostile response of other inmates on learning of his offences; and he was returned to Category C conditions to undertake work on whether there was a sexual element to the offence.
- In 2004 (the 5th review) the Parole Board and the Secretary of State agreed that he was again suitable for transfer to open conditions so as to prepare for resettlement. After 18 months, he again had to be returned to closed conditions: this time 'temporarily' for his own safety following hostile press reporting of his temporary release to a hostel in Merseyside over Christmas 2005. At a further parole review in March 2007 (the 6th review), and following a 3-day oral hearing, the Panel did not recommend release or transfer to open conditions, but issued a detailed decision containing directions for the Claimant's next parole hearing which was due to take place in March 2009. He retained his Category D status, although the Secretary of State refused to transfer him to open conditions due, among other reasons, to concern for his safety. In 2009 (the 7th review), although the Parole Board recommended that the Claimant was suitable for transfer to open conditions, the Secretary of State rejected that recommendation.
The legal framework for the Panel's 2011 decision (the 8th review)
- A mandatory life prisoner may require the Secretary of State to refer his case to the Parole Board on the expiration of his minimum term and at two-yearly intervals thereafter, see the Crime (Sentences) Act 1997 ('CSA'), s 28(7)).
- The Claimant's case was referred to the Parole Board for the 2011 review in order to consider whether or not it would be appropriate to direct his release and, if not, to advise the Secretary of State 'whether [the Claimant] … should be transferred to open conditions.'
- The matters to be taken into account by the Parole Board when considering whether or not to recommend a life sentence prisoner's transfer to open conditions are set out in directions made by the Secretary of State under statutory powers: the August 2004 Directions. These include:
2. The main facilities, interventions, and resources for addressing and reducing core risk factors exist principally in the closed lifer estate. In this context, the focus on open conditions is to test the efficacy of such core risk reduction work and address, where possible any residual aspects of risk.
3. A move to open conditions should be based on a balanced assessment of risk and benefits. However, the Parole Board's emphasis should be on the risk reduction aspect and, in particular, on the need for the lifer to have made significant progress in changing his/her attitudes and tackling behavioural problems in closed conditions, without which a move to open conditions will not generally be considered.
4. Before recommending the transfer of a lifer to open conditions, the Parole Board must consider:
- all information before it, including any written or oral evidence obtained by the Board ...
…
5. The Parole Board must take the following main factors into account when evaluating the risks of transfer against the benefits:-
a) the extent to which the lifer has made sufficient progress during sentence in addressing and reducing risk to a level consistent with protecting the public from harm, in circumstances where the lifer in open conditions would be in the community, unsupervised, under licensed temporary release ...
The Panel's decision
- On 22 June 2011 the Parole Board conducted a directions hearing for the purposes of the Claimant's 8th review; and held an oral hearing on 9 August 2011 at the prison where he was held. As the Claimant was not seeking a direction for his release, the Parole Board focused on whether to advise the Secretary of State that the Claimant should be transferred to open conditions.
- The written decision of 16 August 2011 ('the Review Decision') extends to 11 unnumbered pages. For convenience I have identified the more important passages [A-J].
- The Parole Board initially set out the primary consideration that applied to its decision:
[A] The overriding factor is risk to the public and the Panel may not direct your release unless it is satisfied that it is no longer necessary in the interests of public protection that you continue to be detained ... Normally a period of testing in open conditions is necessary and in determining whether to recommend such a move the Panel has to balance the risk to the public against any benefits to you and the public which might accrue from a transfer to open conditions. Where the risk against the benefits is evenly balanced the risk to the public shall always be the deciding factor.
No complaint is made about this approach.
- In coming to its decision the Panel considered all the documents in the Claimant's dossier (525 pages), as well as oral evidence from the Claimant, his Offender Manager and Offender Supervisor. It also heard oral submissions from the Claimant's counsel (not Ms Whitaker) and the Secretary of State's representative (not Ms Steyn); and considered written documents and points of agreement prepared by two clinical psychologists (Dr Lisa Wright and Dr Craissati), and a further report from Dr Craissati who had been instructed on the Claimant's behalf.
- The Panel analysed the Claimant's offences, including antecedent offending, and identified a number of risk factors:
[B] ... use of alcohol as a disinhibitor of your underlying emotions; violent fantasies resulting from childhood experiences of humiliation, rejection, frustration and bullying; vengeance thinking; features of psychopathy, particularly deficits in your emotional responses; maladaptive patterns of dealing with anger, humiliation, rejection and frustration; exploitation and manipulation by you in interpersonal relationships; and low self-esteem and self-aggrandisement.
It will be necessary to look further at what was meant by 'exploitation and manipulation ... in interpersonal relationships.' However, it is not suggested (nor could it be) that the Panel was wrong to identify this as a risk factor.
- The Panel also considered the evidence in relation to the Claimant while he had been in prison, before addressing its assessment of the 'current risk of re-offending and serious harm'. Under this heading the Panel assessed that the risk of serious harm to the public remained high and 'the imminence' of that harm could not be predicted with confidence. In making its assessment of risk the Panel noted:
[C] Your index offences were extremely violent crimes many aspects of which remained unexplained;
The fact that the offences seemingly occurred without any prior indication or warning;
Your previous violent responses in different contexts were to perceived rejection, humiliation or frustration
Your long-standing difficulties in interpersonal relationships;
Your capacity to form intimate relationships with many women while in closed conditions and your perception of your role as something of an advisor or counsellor of those relationships;
The difficulty in assessing the true value of any reported progress arising from therapeutic work.
[D] In considering the evidence of the history of your relationships this Panel has concluded that, in spite of Dr Mendelson's recommendation made as long ago as 1999, insufficient attention has been paid, since then and in recent years to your 'romantic and sexual relationships' and 'in particular to your on-going relationship with [FH], which you described to the Panel as 'mutually supportive' and one in which 'we discuss anything and everything'.
The Panel noted with 'some concern that there has been no further recorded examination of this relationship [with FH] since 2005' by Avon & Somerset Probation Service and quoted from that report.
- The Review Decision also contained the following passages:
[E] ... your evidence that you were introduced to [FH] by [SF]. [FH] was then in her 20s and the mother of an extremely sick child. You told the panel that [SF] thought you could be the sort of person who could listen to FH and help her with her problems ...
[F] ... your limited responses to direct questions about your relationships with [SF] and [FH] and your reported unwillingness to volunteer information about them to your Offender Supervisor. This causes concern to the Panel in that a) you lacked openness about important aspects of your personal life which have the potential to forcibly impact on your emotions; and b) you have a history of inappropriate and violent responses to emotionally challenging circumstances or situations which cause you feelings of rejection, humiliation or frustration.
[G] The Panel has concluded that insufficient investigation has been made into the residual risk in these areas, particularly bearing in mind your assertion in evidence that the 2nd and 3rd victims ... were in your eyes [other members of their family] who you feel had humiliated you.
[H] For all these reasons the risks inherent in any emotional relationship you now have or will make in the future need further investigation.
- The Panel balanced these considerations against the fact that the Claimant had spent 2 years in open conditions without any concern arising from his conduct.
- Under the heading 'Conclusion: level of risk and suitability for release', the Review Decision concluded:
[I] The Panel wishes to emphasise that hitherto attention has predominately been focussed upon the possible sexual and/or sadistic nature of your index offences and [the nature of your victims]. Whilst this is understandable, there appears to have been insufficient attention and consideration given to the fact that you are capable of forming, while in custody, serial relationships of a sexual nature with women and that your index offences are attributed by you to difficulties in your relationships with others causing you to enact your violent fantasies directed towards [others].
[J] The Panel considers that your risks in relation to how you form relationships and deal with setbacks arising from them are not sufficiently understood by you, nor have they been adequately addressed in the therapy you have undertaken. The Panel considers this is a core issue relating to your risk reduction.
The nature of the claim
- For the Claimant, Ms Whitaker, submitted that it was clear that the Claimant's relationships with women in custody, and in particular that with FH, was the dominant factor in the Panel's reasoning; and was the only substantive matter which it identified as amounting to a risk factor. It was, at the very least, a matter which 'tipped the balance' against the Claimant. While she accepted that difficulties in the Claimant's relationships, as part of his explanation for the index offences, had always been a significant risk issue, she submitted that in none of the 7 previous reviews, had a Panel made a link between the Claimant's relationships with women in custody and difficulties in the Claimant's relationship with other members of the victims' family, which was said to have contributed to the commission of the index offences.
- In particular there was no evidence in the dossier or elsewhere which indicated any 'difficulties' with relationships with women formed by the Claimant while in custody, and certainly no evidence that the Claimant had responded to them inappropriately due to feelings of 'rejection, humiliation or frustration'. In fact the only evidence about the nature of the Claimant's relationship with FH, cited by the Panel, was his description of their relationship as 'mutually supportive' and one where they 'would tell each other anything and everything,' [see D above]
- The Panel should have known that the Claimant would not be aware that this was likely to be a key consideration in the Panel's decision since it made repeated references to 'insufficient attention' having been given to it in the past and made the (factually incorrect) assertion that the relationship had not been looked at since 2005. In fact, the relationship with FH and her husband had been 'looked at' by the Avon & Somerset Probation Service in 2005 as part of the consideration as to whether the area would be an appropriate one for the Claimant to be located on release. No concerns had been expressed by them about the relationship between the couple and Claimant, although some concern had been expressed about the limited disclosure of the nature of the offences. This had been at FH's request, although the Claimant had volunteered to provide further details. Subsequent to the report by Avon & Somerset Probation Service, Graham Price, the Claimant's former Offender Manager, confirmed in a written report for the 2007 Parole hearing that full disclosure had now taken place; and he had confirmed orally at the hearing that the couple continued to support the Claimant, and would report any concerns that they had about his behaviour. They had co-operated fully with assessments by the relevant Probation Services.
- If the Claimant been made aware of the Panel's view of the significance of the relationship with FH his representatives could have submitted the reports of Graham Price prepared for the 2007 hearing which did not form part of the Claimant's 2011 dossier, and would have been able to correct the Panel's misunderstanding of the facts.
- In describing their concern as emanating from the Claimant's capacity to form 'serial relationships with women of a sexual nature' while in custody, [see I above], the Panel seems to have erroneously assumed that the Claimant's relationship with FH was of a 'sexual nature'. Not only was there no evidence of this within the dossier, there was evidence that it was not a sexual relationship. Evidence to this effect could have been called to reassure the Panel on this point had the Claimant been aware it was an issue. The Panel's approach meant that the Claimant was denied the opportunity to rebut, with evidence, the incorrect assumptions and findings of the Panel.
- The only issue concerning the Claimant's relationships with women formed while in custody which had arisen in previous parole reviews was his relationship with SF, and his reported perception that it had a sexual aspect to it. The 2007 Panel had heard live evidence from SF, as she formed a key component of the Claimant's external support network. At §§52-56 of the 2007 decision (6th review), the Panel said that it had considered the nature of the relationship between the Claimant and SF, and found there was no sexual touching, adding at §56: 'We make these findings as much as anything so that this issue does not need to be litigated again. It carries little weight'.
- In the 2009 decision (7th review) the Panel made no explicit reference to the issue of relationships formed in custody, although it adopted the reasons set out in 2007 decision letter (two members of Panel had sat on the 2007 Panel).
- The relationships which the Claimant had formed had not been regarded as a risk factor at previous parole reviews; and had been relied on as being to his credit.
The applicable legal principles
- The parties referred to, and relied on, a number of cases: Mahon v. Air New Zealand [1984] 1 AC 808, R v. Home Secretary, Ex p. Doody [1994] 1 AC 531, In re D (Adoption Reports: Confidentiality) [1996] AC 593, R (West and Smith) v Parole Board [2005] 1WLR 350 and R (Roberts) v. Parole Board [2005] 2 AC 738
- The cases establish a number of broad principles which are relevant to the present case.
- (1) A tariff-expired mandatory life sentence prisoner has a right to be released, no matter what the enormity of the crime or crimes for which he was imprisoned, if he is judged to present no continuing threat to the safety of the public, Lord Bingham in Roberts at [11].
(2) Whether or not it is safe to release a prisoner cannot be ascertained with scientific accuracy, it calls for an exercise of informed and experienced judgement, Lord Bingham in Roberts at [12].
(3) The body charged with exercising this judgement and deciding whether the prisoner should be released, or transferred to open conditions with a view to release, is the Parole Board, which has a public law duty to act in a procedurally fair manner, see for example Lord Bingham in West at [1] and Lord Woolf CJ in Roberts at [43], citing Lord Bingham in R v. H [2004] 2 AC 134 at [11].
(4) The requirements of fairness may change and are in any event closely conditioned by the legal and administrative context and the interests at stake, see Lord Bingham in West at [27], [30] and [35].
(5) The interests at stake are the safety of the public, with which the Parole Board cannot gamble, and the prisoner's conditional freedom, Lord Bingham in West [30]
(6) Fairness will usually requires that the prisoner is provided with adverse material which the Panel may take into account in making its decision, and an opportunity to answer such material by evidence and argument, see Lord Mustill in the case of In re D at 603H.
(7) An oral hearing enables the Panel to question a prisoner or those who have dealt with him or her, to convey points which may be troubling them so as to enable effective representations to be made, and decide what may be disputed issues of fact, see Lord Bingham in West at [35], and Lord Hope in West at [67].
(8) The effectiveness of the right to make representations may depend on an understanding of the considerations which may lead to an adverse decision. The point was expressed by Lord Mustill in ex.p Doody at 563F-G
It has frequently been stated that the right to make representations is of little value unless the maker has knowledge in advance of the considerations which, unless effectively challenged, will or may lead to an adverse decision. … This proposition of common sense will in many instances require an explicit disclosure of the substance of the matters on which the decision-maker intends to proceed. Whether such a duty exists, how far it goes and how it should be performed depend so entirely on the circumstances of the individual case that I prefer not to reason from any general proposition on the subject.
In ex.p Doody the House of Lords held that before making representations about the life sentence tariff (decided then by the Home Secretary) the prisoner was entitled to know the period of the tariff which had been recommended by the trial judge and the Lord Chief Justice. See also, Mahon v Air New Zealand at 820H.
- I am more doubtful about the Claimant's suggestion that the Parole Board is bound to articulate its concerns so as to give the prisoner an opportunity to answer them. The Claimant relied on a passage in the speech of Lord Mustill in the case of In re D at 603H, following the extract referred to above:
The principle is lame if the party does not know the substance of what is said against him (or her), for what he does not know he cannot answer.
My hesitation derives first, from the fact that the House of Lords was there dealing with the disclosure of evidence, and secondly, from the nature of the Parole Board's statutory function, which is essentially inquisitorial rather than adversarial. I would, however accept that, if the Panel has a particular concern which does not arise from the evidential material, it should give the prisoner an opportunity to address that concern.
The issues in the present case
- There are four issues which arise:
(1) Was there material which supported the Panel's conclusion [see G-I above];
(2) Were the Claimant and his advisors aware of this material;
(3) Was the Panel under a duty to notify the Claimant of its concerns about the issue which concerned them, as a matter of fairness; and/or
(4) Was the Panel under a duty to draw the Claimant's attention to the fact that it considered the issue to be 'relevant' and/or 'key' to its conclusions?
The material in the dossier
- Relevant to these issues are the reports in the dossier of evidence and the contents of some of the earlier Parole Board reviews.
- (a) As early as January 1996, in a report of Carol Smith (a Psychologist) and Glyn Vernon (a Probation Officer), concern had been expressed about the Claimant's relationships.
[W]e do consider that there are a number of areas which [the Claimant] needs to address … These are as follows: … relationships; social and life skills.
The continued assessment needs to focus on [the Claimant] gaining further insight into the offence focusing on: … relationship with the [the victims' relations] and [a woman he had befriended in prison] …
- (b) The report of Dr Mendelson (a Consultant Forensic Psychiatrist) dated 10 November 1999, which the Panel plainly had in mind [see D above], favoured a return to open conditions, but contained a note which was referred to in the Decision Letter:
5. It is extremely important that there remains close monitoring of [the Claimant's] functioning in the romantic and sexual spheres. From the above assessment work, it would seem he is still likely to be troubled by a degree of sexual dysfunction. He is currently more mature than he was, and this is likely to be less of a source of distress to him than previously. Nonetheless, again, it would only be prudent to ensure he was assisted to gain satisfactory functioning in these dimensions of normal life to improve his overall adjustment and resilience to setbacks.
- (c) The Report of Ms McClymont (a senior forensic prison psychologist) dated June 2002 contained the following:
... he has not got the full emotional responses normally associated within relationships. This is my favoured option as [the Claimant] does not show the range or depth of emotion expected when discussing other relationships. This is again, an issue which is linked to some attributes of psychopathy.
Relationships, including sexual relationships
Dr Mendelson regarded this as an area of concern. It is also of concern that [the Claimant] appears to be presenting different 'faces' to different professionals with regard to this. ...
It is an enduring factor of [the Claimant's] relationships that he is an 'advisor' or 'counsellor' to the women he befriends ...
- (d) In his addendum report dated 10 December 2002 Dr Mendelson noted:
The risks are of course longer term. Problems are much more likely to occur once he experiences problems in future relationships or suffers other stresses.
- (e) In a report dated 20 April 2005, Professor Perkins (a Consultant Clinical and Forensic Psychologist), among other observations, referred to a report (Friend and Henderson 13 March 2005) in which the authors had expressed the view that the Claimant would have no difficulty in gaining entry to a vulnerable woman's household as he had done at the time of the offences. Among his own observations Professor Perkins noted:
80. ... I note that opportunities for observing [the Claimant's] interactions with a range of other people may be less than for other prisoners and, if this is correct, manifestations of any personality disorders may have been masked...
87 ... he is most comfortable when in a high status role (teacher, counsellor) ...
89a ... There appears to have been a pattern of using women, at least initially, for sexual purposes ...
92. ... His sexual interests appear to have continued after conviction, through sexual contacts with women whilst in prison, some of whom were in vulnerable situations ... Concerns have been expressed about his links with vulnerable women, for whom he sometimes sees himself, and acts in the role of informal adviser/counsellor. He has previously said that he found it difficult to distinguish between love and lust, but now presents as having empathy and concern for his friends. His knowledge of what makes women attracted to men in prison could be seen as insight he has developed that could be used for benign purposes. However, such knowledge, if combined with psychopathic traits (if they are present) would be a cause for concern, and in these circumstances his behaviour with others would need to be closely monitored, with information drawn from sources other than [the Claimant].
99. One feature of psychopathy is an ability to persuade or manipulate others, particularly the vulnerable or naive others, but also those with whom the individual appears to have developed a close bond. As [the Claimant] spoke more freely with me at the second interview, he was able to give an account of the reasons why he might be attractive to women, including (a) his tactile and demonstrative nature ... and (b) the focused attention that he can be given to a visitor during prison visits. Indeed [the Claimant] explained how his friendship with [SF] and [FH] had moved in the direction of sexual relationships, although he declined [FH's] offer of marriage. [The] context of this relationship is one where [the Claimant] reports that [FH] once wanted to marry him and where he has 'reassured' her husband that there is nothing more than a longstanding friendship in his relationship with [FH]. The probation report following a visit to [FH and her husband] indicates that caution should be exercised in the nature and development of these relationships.
100. ... there is, in my view, sufficient evidence of the likely presence of psychopathic traits prior to the index offence, and sufficient indications that these may continue to be present, possibly masked or suppressed within the prison environment, or possibly reduced through maturation and therapy ... The implications are that he may not see things as others do in terms of what is acceptable behaviour and that he may not process emotional situations and relationships as others do. As such, it would be prudent that his social and sexual relationships are monitored by multiple sources of information ... with particular focus on situations in which there might be contact with vulnerable people and children, intimate sexual relationships, interpersonal tensions leading to emotions such as jealousy and anger'
- (f) The Report of Dr Craissati (an Independent Chartered Forensic and Clinical Psychologist) dated 12 September 2005 included the following:
28. ... His interpersonal difficulties could be considered to be dormant in a situation where intimacy cannot really be achieved, but this is an area which may emerge as difficult for [the Claimant] in the long term.
32. ... The second problem related to his poor management of intimate relationships, which appeared to emerge as a result of feelings of inadequacy in dating and sexual encounters during adolescence, resulting in a preference for alcohol-fuelled superficial sexual encounters; any attempt at relationships in early adulthood failed, largely due to his own immature behaviours, and also perhaps a fundamental difficulty in experiencing or expressing emotional depth. There is some suggestion that [the Claimant] may continue to have had some difficulties in forging relationships which adhere to normally accepted boundaries, in terms of his encounters whilst in prison, although it is only fair to say that these encounters have been very intermittent indeed.
34 ... it may be – particularly given the residual psychopathic traits (see below) – that he may experience difficulties in managing intimate relationships in the future, and this could be a risk factor.
- (g) The Parole Board in its 2007 decision (6th review), conducted on 20-22 March 2007 identified elements of risk:
29. A previous Panel identified the following risk factors: … inability to deal with frustration, belittlement and hostility … poor interpersonal relationships …
33. ...Dr Mendelson conducted a series of exhaustive interviews during which he elicited from [the Claimant] an explanation of the offences different from any that other professionals had elicited … He also spoke of two types of provocation to which he had been subject in the day before the offences. …
34. Dr Mendelson believes that the[se] two acts by the [members of the victims' family] triggered violent revenge fantasies during which [the Claimant] acted out his anger and resentment. He accepts what [the Claimant] told him namely that, in killing the [the victims, he was 'seeing' [members of the victims' family] and acting out a vengeful fantasy against them …
- The 2007 Panel also considered the relationship between the Claimant and SF; and recorded that at different times the Claimant had said that there was a sexual element to his relationship with SF. The Panel found that there was no sexual element to the relationship; but were unable to reach a conclusion as to why the Claimant had said that there was. The Panel concluded with an observation on which Ms Whitaker relies:
We make these findings as much as anything so that the issue does not need to be litigated again. It carries little weight in our decision.
- (h) The Report of Alex Hossack (a Consultant Clinical Psychologist) dated 12 June 2009 also contained some relevant observations.
6.1 ... [The Claimant's] lack of self-awareness is due to a chronic, entrenched emotionally avoidant intellectual coping style that serves to prevent a deterioration in his self-esteem, protect his fragile self-identity and buffer any threat to his integrity. Much energy is spent in sublimating anger, his awareness of this is poor and the effort of maintaining an emotional distance needs to be constant. Under long term pressure control may fail and suppressed emotions filter through, with the potential for an extreme reaction.
7.1 Any risk management plan will benefit from acknowledging the following factors:
i) Problems engaging with others ...
- (i) The Parole Board in its 2009 decision (7th review), dated 21 July 2009, adopted the detailed reasons given by the Panel in March 2007, to the extent they were still relevant:
14.b.ii. In his [Mr Hossack's] opinion, risk in your case could more effectively [be] approached through a deeper understanding of the underlying dynamics driving your offending behaviour … He would accept that Dr Mendelson's work has gone a long way towards developing an understanding of what happened at the time of the offence. Further work would find the underlying dynamics of your offending …
In answer to a question about the index offences, the Claimant was recorded as saying that he felt 'caged' by one sexual relationship and had been unable to understand the reaction of another person to that sexual relationship.
- (j) The Decision letter from the Secretary of State in the 2009 decision, dated 24 August 2009, dealt with risk factors which had been identified as, among other matters, 'poor interpersonal relationships and powerful violent fantasies ...'
- (k) The Parole Assessment Report prepared by a Probation Officer dated 25 October 2010 noted,
Key risk factors remain as being ... frustration particularly within poor interpersonal relationships.
- (l) The OASys assessment of 9 October 2010 noted,
Risk would be heightened in times of frustration or anger towards an individual and could also increase when involved in an intimate/personal relationship;
and, in answer to the question 'who is at risk?', noted
Concerns would be raised should [the Claimant] form an intimate/personal relationships.
- (m) The 2011 Review Panel also had a statement from the Claimant, which was supplemented by his oral evidence. This statement identified 'Interpersonal relationships' among 'Risk Factors'. He addressed this issue:
I have friends for over 20 years, both inmates and people from the outside. Including SF [and 2 other named individuals].
Clearly he was relying on the nature of those relationships, although he did not refer to FH.
Discussion
- Although the Parole Board should avoid giving the impression that it is simply placing a succession of obstacles in the way of a life prisoner, the Panel brings a particular expertise to what may be difficult assessments of factual information, expert evidence, risk and psychopathology, as well as changes of view as to the particular weight to be given to what may be a large number of relevant factors.
- The Review Decision must be read in the light of the reports in the dossier which the Panel said they had carefully considered. This showed that, from a relatively early stage (at least from 1996), the Claimant's interpersonal relationships were identified as an area of risk.
- It is also clear that, at least from the date of Dr Mendelson's 1999 Report, concerns had been expressed about the Claimant's intimate/personal relationships, including those with women he had befriended in prison; and that this might emerge as a significant risk factor in a time of stress. Furthermore, since at least the time of Ms McClymont's 2002 report and Professor Perkins's 2005 report, concern had been raised about his relationship with FH and SF; and the Claimant's view that he had a role as advisor and/or counsellor to these women.
- I am aware of the need to guard against the danger of hindsight, and focussing too closely on matters which the Claimant's advisors have said they had not identified as issues. However, even with that caution it seems to me plain that this was a live issue. It may be, as the 2011 Panel implicitly found, that not enough attention had been paid to these matters; but there was plainly material which should have alerted the Claimant and his advisors.
- The Panel's concern focussed on 4 interconnected and overlapping questions: (1) the 'long standing difficulties in interpersonal relationships'; (2) the Claimant's capacity to form intimate relationships with many women while in closed conditions (3) his perception of his role as 'something of an advisor or counsellor', and (4) his on-going relationship with FH which he had described as 'mutually supportive' and one in which they discussed 'anything and everything.'
- In the light of the Claimant's attribution of the index offences to difficulties in his relationship with others causing him to enact violent fantasies directed towards the victim's family, it was the relevance of these questions which led the Panel to conclude that, given the fact that he was 'capable' of forming serial relationships of a sexual nature with women while in custody, and that the risk in relation to how he formed relationships and dealt with setbacks arising from them, was not sufficiently understood by the Claimant and not adequately addressed in the therapy.
- For these reasons I answer issues (a) and (b) affirmatively.
- As already noted, Ms Whitaker submitted that, even if this were so, the Panel's view of the importance of the issue should have been drawn to the attention of the Claimant.
- It seems to me that no general rule can be devised as to the extent to which a Parole Board panel should articulate its concerns. As the cases make clear, much will depend on the circumstances. What is clear in the present case is that the Claimant had himself identified interpersonal relationships as a risk factor, and the issue of poor interpersonal relationships had been repeatedly identified: both in the 2007 and 2009 Review Decisions and in a number of the reports which had been prepared since 1996.
- It is not sufficient for the Claimant to argue that he thought that the relationship between FH and (to a lesser extent) SF supported his argument that he should be transferred to open conditions. At the very least, he and his advisors should have had in mind that the Panel might take a different view, and that the nature of the relationships, and particularly the on-going relationship with FH, required particularly close attention, not least in the light of Professor Perkins's observations in his 2005 report at §§92 and 99.
- The Panel's questioning of Dr Lisa Wright revealed her unease that the Claimant might be suppressing strong emotions when challenging situations occurred; and the Panel were entitled to reach the view that the Claimant's reaction to set-backs in his interpersonal relationships was a matter that needed to be investigated and was relevant to the risk he posed.
- It is also clear that the Claimant was asked questions at the start of his oral evidence which conveyed or should have conveyed that the Panel was interested in his interpersonal relationships, and particularly with FH and SF. The fact that he gave limited and (what the Panel plainly considered) unsatisfactory answers is not the fault of the Panel; and I reject the submission that the Panel is bound to warn a prisoner during the course of an oral hearing of the view that his or her answer is, or may be, thought unsatisfactory.
- The evidence of the witness statement of Counsel who represented the Claimant at the hearing is that, as a consequence of not appreciating that personal relationships was an issue, she did not ask any 'detailed' questions about it; and the evidence of Rikki Garg (the experienced Prison Law consultant with the Claimant's solicitor) was that there was 'very little questioning on the issue of relationships.' This confirms (as the contents of the Decision Letter makes clear) that the Claimant was asked questions about his interpersonal relationships. It was what the Panel regarded as the unsatisfactory answers to their questions which reinforced their view that this was something which needed to be addressed.
- In the light of the above, I am satisfied that the issue of the Claimant's interpersonal relationships should have been understood to be a live issue, that he was given an opportunity to give evidence about his relationship with SF and FH and gave 'limited responses' which gave rise to the Panel's conclusions expressed at [G] to [I] of the Decision Letter.
- There are two further arguments of Ms Whitaker which I should deal with. First, it may be, as she submitted, that the issues raised by the Avon and Somerset Probation Service about the relationship between the Claimant and FH (and her husband) had in fact been looked at further; but this appears only to have related to whether the Claimant had been, or was prepared to be, frank about the nature of his offences. This had little, if any, impact on the Panel's concerns. Secondly, the remark by the Panel in its 2007 review (the 6th review), about the relationship between the Claimant and SF not needing to be litigated again, referred to the factual finding, and did not imply that the issues raised would never afterwards be material.
- It follows that I answer the questions posed as issues (c) and (d): no.
- In these circumstances I do not need to consider Ms Steyn's alternative argument that, if there had been a breach of the Rules of Natural Justice, nevertheless the Court should not exercise its discretion to quash the decision, since the Court could be satisfied that such breach made no difference to the outcome. She relied on R (B) v. London Borough of Merton [2003] EWHC 1689 at [22], where Burnton J held that the Defendant had not complied with a duty to act fairly, and had also failed to satisfy him that even without the unfairness, the same decision would 'inevitably have been made.' In my view, where the potential unfairness impacts on personal liberty, the Court would need to look with particular care at the suggestion that unfairness made no difference, and that there was no answer to points which ex hypothesi had not been raised in breach of natural justice. It may be that Ms Steyn is correct; but since it does not arise for determination, I can confine myself to saying that the same decision would probably, but not inevitably, have been made.
Conclusion
- For the above reasons the Claim fails and is dismissed.
