R (Hall) v First Secretary of State
| Jurisdiction | England & Wales |
| Judge | THE DEPUTY JUDGE |
| Judgment Date | 16 November 2005 |
| Neutral Citation | [2005] EWHC 3165 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/5311/2004 |
| Date | 16 November 2005 |
[2005] EWHC 3165 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2
Clare Montgomery Qc
(sitting As A Deputy Judge Of The High Court
CO/5311/2004
MISS F KRAUSE AND MISS K MCMILLAN (instructed by Messrs Nelsons, Nottingham) appeared on behalf of the CLAIMANT MR P PATEL (instructed by Treasury Solicitors) appeared on behalf of the DEFENDANT
The claimant is a post-tariff mandatory life prisoner. On 2nd August 2004 and on 6th September 2005 the Secretary of State refused to transfer the claimant to open conditions despite a recommendation by the Parole Board of 4th February 2004 that he should be so transferred. This application raises four issues:
The criteria for the review of the decision of the Secretary of State.
The procedure followed by the Secretary of State, in particular his decision not to remit the matter to the Parole Board in 2005.
The rationality of the decisions to refuse a transfer to open conditions.
Whether the application for judicial review is academic.
The claimant
The claimant is 68 years old. Prior to being sentenced to imprisonment for life he had previous convictions, only two of these had a sexual element: one for indecent assault on a nine-year-old and the second for buggery. In December 1967, following his release from prison on 7th December 1967, he sexually assaulted his then wife and some time later on the night of 12th/13th December 1967 he sexually assaulted and murdered a 16-year-old girl. He was convicted on 1st April 1968 by the jury of murder and sentenced to life imprisonment. His tariff expired on 20th December 1987.
In July 1994 the claimant was recommended by the Parole Board for transfer to open prison conditions. In October 1994 the Secretary of State accepted the recommendation and the claimant was moved to open conditions. As a result of concerns expressed by his probation officer and information from the claimant's new wife, he was moved back to closed conditions in November 1994. There is a question as to the nature and extent of the claimant's conduct in 1994 that provoked the concerns. However, it appears to have been accepted by the claimant that he had engaged in detailed correspondence with his new wife in which sexually sadistic acts were described. The claimant has since told Mr Matthews, a psychologist, that these were merely fantasies.
After receiving representations for the claimant on 20th January 1995 the Parole Board determined that he was not suitable for release or to be detained in open conditions. A further parole review followed in May 1997. The Parole Board stated then that work on the sexual component of his offending behaviour was essential. The claimant was not recommended for release or return to open conditions.
In January 2000 it was recommended by the Parole Board that the claimant remain in closed conditions and that he undertake a sex offenders treatment programme and have an independent psychological risk assessment. Later in 2000 the claimant suffered a series of heart attacks which left him physically weakened.
In 2001 the claimant's psychological state was considered by Mr Matthews, a psychologist, who concluded that he was at high risk of committing a further serious sexual offence. Mr Matthews recommended the claimant should complete the sex offenders treatment programme. There is a question as to the use by Mr Matthews of a risk matrix 2000 but his view is not wholly dependent upon the matrix that he used.
An independent review by Mr Carter, another psychologist, concluded that the claimant was a medium risk of committing serious sexual offences and also recommended that he complete the sex offenders treatment programme, subject to his being fit to undertake it.
In 2002 Dr Pratt, instructed by the claimant's solicitors, completed an independent psychological report. He drew attention to the fact that the claimant had now formed an intense relationship with a woman who I shall refer to as S and that the existence of this relationship had a significant effect in reducing the risk of the claimant reoffending. Dr Pratt also recorded that S's relationship with the claimant would be very important in helping to secure full and proper supervision on release or in open conditions. Dr Pratt concluded that it was safe for the claimant to move to open conditions as he was not at risk of reoffending.
In 2003, Dr Faiz, a medical doctor, concluded that the claimant was not fit to undertake a sex offenders treatment programme but that he could undertake one to one psychology sessions to deal with the sexual aspect of his offending. It is common ground that no such work has been done by the claimant since 1994.
On 4th February 2004 the Parole Board considered the claimant's case and heard evidence from the claimant, S and Dr Pratt. Dr Pratt's evidence that there was no risk of reoffending was not accepted by the Parole Board but they accepted Dr Pratt's view that the risk had reduced to a level where transfer to open conditions was appropriate. The Panel regarded the relationship between the claimant and S as an essential feature of the case. The Panel had been informed by Mr Taylor, a prison officer, about concerns relating to contact between the claimant and children in possible breach of restrictions imposed upon him, but the Parole Board observed in its recommendation letter that the claimant should be quite clear about the restrictions on him.
On 30th April 2004 Mr Taylor completed a security report on contacts involving the claimant that were said to be in breach of the restrictions placed on him ("the security report"). The report detailed correspondence and telephone calls, including contacts with children after the Parole Board decision. One additional feature revealed in the security report was that the claimant appeared to be in telephone contact with two different women (not S) who I shall refer to as A and B, with whom he appeared to be planning to live after his release and to whom he expressed his love.
On 2nd August 2004 the Secretary of State, having considered the Parole Board recommendation and the security report, decided not to transfer the claimant to open conditions ("the first decision"). He said:
"The Secretary of State has noted, in addition to the papers considered by the Parole Board, the comments of the panel in reaching their decision. He notes that the Panel accepts that you present an unacceptable risk for release but that you should be transferred to open conditions. Although the majority of the report writers do not support your progression to open conditions, the Secretary of State notes the view of your External Probation Officer who considers that it would be the appropriate to test your risk in semi-open conditions and allow for monitoring of your relationship with S.
…
However, since the last Parole Board review of your case [that is the review in 2002], the Secretary of State is aware you have not sought to address areas of identified risk in your case and that concerns have been expressed by staff with regard to your risk of sexual reoffending, attitude towards women, relationships and fantasies. You have failed to engage in any relevant work to address these risk areas and there are outstanding treatment needs arising out of your lack of insight into your offending which need to be addressed before you could safely transfer to open conditions. In particular, you would benefit from undertaking motivational work to assist in your progression towards eventual release and be assessed for cognitive behavioural programmes such as the Enhanced Thinking Skills programme. You also need to undertake work to explore your sexual offending and fantasies and develope appropriate relapse prevention strategies. As a matter of course, an in-depth psychological assessment should be made available to the next panel.
For all the reasons outlined above, the Secretary of State is not prepared to accept the Parole Board's advice that you be transferred to open conditions."
On 29th October 2004 the claimant applied for permission to seek judicial review of the first decision. Permission was granted on 6th January 2005. On 8th June 2005 Treasury Solicitors acting for the Secretary of State wrote to the claimant's solicitors disclosing the security report. The claimant had...
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