Case No. CO/152/2015 
Neutral Citation Number: [2015] EWHC 2519 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Date: Thursday, 9 July 2015
 
B e f o r e: 

HIS HONOUR JUDGE MCKENNA 
 
Between:
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THE QUEEN ON THE APPLICATION OF HOFFMAN  
Applicant

v 

PAROLE BOARD 
Respondent 
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Computer‑Aided Transcript of the Stenograph Notes of  
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MS M SIKAND (instructed by WAINWRIGHT & CUMMINS) appeared on behalf of the Applicant 
The Respondent did not appear and was not represented.
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J U D G M E N T 

1.	JUDGE MCKENNA:  
INTRODUCTION 
2.	This is the hearing of an application by Neville Hoffman challenging the refusal by the Parole Board, IN a decision made on 6 October 2014, to recommend him for transfer to open conditions on the basis that the Parole Board failed to apply the correct test, failed to carry out any proper balancing exercise when considering transfer to open conditions and failed to conduct a fair hearing.  
3.	Permission was granted on 10 March this year by Sir Stephen Silber sitting as a High Court judge following the filing of an acknowledgement of service by the defendant indicating that it did not intend to participate in this claim.  
4.	The interested party, the Secretary of State for Justice, has as I understand it, played no role in the hearing which led to the decision under challenge, has not acknowledged service and has not taken any part in this claim since issue.  
BACKGROUND 
5.	By way of background, Mr Hoffman is a recalled tariff expired indeterminate sentenced prisoner being held in Her Majesty's Prison Wandsworth, a category C prison.  He received a sentence of imprisonment for public protection ("IPP") with a minimum term of nine months in relation to two offences of threats to kill on 21 April 2006 and, prior to that, had a serious violent conviction for manslaughter in 1996 for which he received a nine‑year term.  He was also given a four‑year sentence consecutive to that sentence for drugs offences, making that determinate sentence a total of 13 years.
6.	The claimant's tariff in respect of the imprisonment for public protection sentence expired on 11 December 2006 and following a recommendation made by the Parole Board Mr Hoffman was transferred to open conditions on 4 May 2011 and following a further direction was released on life licence in September 2012.  He was recalled to prison on 8 April 2014 following his arrest on suspicion of supplying class A drugs and in August 2014 he was sentenced to a determinate term of three years imprisonment to run concurrently with his IPP and, but for the IPP, would be released at the halfway point in relation to that sentence in the usual way.
7.	On 29 April 2014 the Secretary of State for Justice referred Mr Hoffman's case to the Parole Board in accordance with Section 22(4) of the Crime (Sentences) Act 1997 to consider whether to direct Mr Hoffman's immediate release.  The letter, materially for the purposes of this claim, included the following passage:
"If the Board does not direct immediate release the Board is asked to consider whether the prisoner is ready to be moved to open prison conditions.  If, having paid due regard to the directions issued by the Secretary of State under Section 239(6) of the Criminal Justice Act 2003, the Board decides to make such a recommendation it should comment on the degree of risk involved."
8.	At the oral hearing conducted by the Parole Board on 25 September 2014 it was accepted by both Mr Hoffman and the Parole Board that the Board's powers in this case were limited to advising the Secretary of State as to transfer to open conditions since immediate release was not possible.  
9.	It is also right to record that at the hearing both the claimant's offender supervisor, Ms Eleanor Fellowes, and his offender manager, Ms Anita Samuel, gave evidence that it was their independent view that Mr Hoffman's risk could be managed in open conditions.  Notwithstanding that evidence, the Parole Board did not recommend transfer to open conditions.
THE RELEVANT LAW 
10.	Turning to the legislative background to this claim, Section 239(6) of the Criminal Justice Act 2003 empowers the Secretary of State to give the Parole Board directions as to the discharge of its functions pursuant to chapter two of the Crime (Sentences) Act 1997.  
11.	The relevant directions include the following under the heading "Transfer of Life Sentence Prisoners to Open Conditions":
"Introduction.  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 make significant progress in changing his or her attitudes and tackling behavioural problems in closed conditions, without which a move to open conditions will not generally be considered."  
12.	Under the heading, "Directions":
"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; 
Each case on its individual merits without discrimination on any grounds.  
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;  

(b) the extent to which the lifer is likely to comply with the conditions of any such form of temporary release;

(c) the extent to which the life is considered trustworthy enough not to abscond; 

(d) the extent to which the lifer is likely to derive benefit from being able to address areas of concern and to be tested in a more realistic environment, such as to suggest that a transfer to open conditions is worthwhile at that stage.
6.  In assessing risk in such matters, the Parole Board shall consider the following information, where relevant and where available, before recommending the lifer's transfer to open conditions, recognising that the weight and relevance attached to particular information may vary according to the circumstances of each case:‑ 
 (a) the lifer's background, including the nature, circumstances and pattern of any previous offending; 

(b) the nature and circumstances of the index offence and the reasons for it, including any information provided in relation to its impact on the victim or the victim's family;

(c) the trial judge's sentencing comments or report to the Secretary of State, and any probation, medical or other relevant reports or material prepared for the court; 

(d) whether the lifer has made positive and successful efforts to address the attitudes and behavioural problems which led to the commission of the index offence.  

(e) the nature of any offences against prison discipline committed by the lifer;

(f) the lifer's attitude to other prisoners and staff.  

(g) the category of security in which the lifer is held and any reasons or reports provided by the Prison Service for such categorisation, particularly in relation to those lifers held in Category A conditions of security; 

(h) a lifer's awareness of the impact of the index offence, particularly in relation to the victim or victim's family, and the extent of any demonstrable insight into their attitudes and behavioural problems and whether he/she has taken steps to reduce risk through the achievement of life sentence plan targets;

(i) any medical, psychiatric or psychological considerations (particularly if there is a history of mental instability);

(j) the lifer's response when placed in positions of trust, including any outside activities and any escorted absences from closed prisons; 

(k) any indication of predicted risk as determined by a validated actuarial risk predictor model or any other structured assessment of the lifer's risk.and treatment needs.
7.  Before recommending transfer to open conditions, the Parole Board shall also consider the lifer's relationship with the Probation Service (in particular the supervising of the probation officer), and other outside support such as family and friends."
13.	When considering this claim I remind myself that I must not interfere with the discretion or judgment of the Parole Board who are uniquely qualified to make the decisions that they are called upon to make.  What I must do is ask myself whether the Parole Board has carried out its task in accordance with the law, that is to say whether it is a decision falling within the range of decisions which a reasonable panel might make.  
DISCUSSION 
14.	The decision under challenge, as I say, is dated 25 September 2014.  That decision includes the following under the heading, "Assessment of risk of re‑offending and serious harm" at paragraph 6 as follows: 
"The panel were not impressed with your evidence.  The commission of serious drug offending offences led the panel to doubt whether you derived much if any benefit from the programmes and other work you have done to address your risk and it was inevitable in those circumstances that the panel would revisit your past offending behaviour.  You continue to minimise your actions in committing the manslaughter offence.  Whilst the verdict of the jury clearly means that its members accepted that you had been the victim of the serious bullying, intimidation and violence which formed the basis of your plea of provocation, the fact of the matter is that you took a loaded gun to what you knew was going to be a confrontation with the victim and the seriousness of your crime is reflected in the increased sentence passed on appeal.  You tried to maintain in evidence to the panel that when you acquired the gun from the person who supplied it to you, you did not know it was loaded and had not asked the supplier.  The panel did not find that evidence credible.  You also said that you had no intention of firing the gun when you took it to the meeting, but the fact that the gun was loaded casts substantial doubt on that statement as it suggests that you realised, at least, that there was the possibility that you might fire it even if your primary purpose was to produce the gun to deter violence against you.  
You continue to deny making the threats to kill which resulted in your conviction for the index offences. With regard to the recall offences, your account was that Daniel Martin, a family friend, who at 29 years of age, was very much your junior, asked you to be his driver to driver him about.  You knew he had a drug habit but you told the panel you it had not struck you that the job might be connected with drug dealing.  You only became aware after you had agreed to be his driver.  Even then, you said, your role was primarily as a driver and you appeared to have difficulty in acknowledging in evidence to the panel that, at very least in relation to the specific offences to which you pleaded guilty, you were not standing idly by but were actively involved in handing over the drugs to undercover officers.  You agreed that Mr Martin, who was given a sentence of 3 years, 4 months, does not seem to have been treated very differently in terms of culpability than you were, but you still maintained that your role was significantly less than his.  The panel found it hard to credit your evidence that you did not realise that you were getting yourself involved in drug dealing from the start and equally difficult to accept that your role was as minor as you contend.  But even on your own evidence you ended up playing a part in a criminal enterprise which you must have known was fraught with risk given the prominence of drug misuse amongst your risk factors and the fact that a previous association with drugs that had brought you into contact with drug dealers that had earned you a four‑year prison sentence.  
Ms Fellowes said that it was not clear how much of the learning you had derived from programmes has been internalised.  She agreed that you had not done much work on violence and that looking back at the history the Resolve programme would have been the obvious intervention after you were found unsuitable for the SCP.  She thought that some work on instrumental violence would be helpful but there were no programmes available at HMP Wandsworth.  Despite her view that further intervention might be helpful, she considered that your risk was manageable in open conditions and she did not think that the drug dealing offences meant that your risk of serious harm had escalated.  
Ms Samuel accepted that no sufficient work had been done in relation to the manslaughter offence, with the result that you were still feeling that you were a victim.  She said that when she started to supervise you she felt a significant piece of work might have been missed and from her assessment your insight into that offence had not been addressed.  The OASys available to the panel was very out of date, but as the panel understood it Ms Samuel did not disagree with the assessments contained in Miss Fellowes' most recent report.  Those showed that the risk of re‑offending under OGRS3, OGP and OVP were all in the low banding category and that the risk of serious harm was regarded as medium to the public.  Ms Samuel agreed that the RM 2000 had resulted in an assessment that the static risk of violent re‑offending was high.  Ms Samuel, despite her view on the lack of intervention to address violence, considered that your risk was manageable in open conditions.  
The views of the probation officers appear to have been at least partly influenced by the fact that, as it turned out, your drug deal activities did not result in any actual violence, but the panel cannot agree that it follows that your risk of serious harm is manageable in open conditions.  Quite apart from the fact that your recent offending was a serious breach of your licence conditions, the ease with which you relapsed into criminal activity gives no confidence that you have developed any significant strategies to avoid re‑offending and drug dealing is inherently an occupation where violence may occur.  You have reacted before in a seriously violent manner in a confrontational and threatening situation, and however extreme may have been the provocation on that occasion, the panel are bound to be very concerned that you should voluntarily put yourself in the position where further confrontational situations might arise, particularly where on the evidence you still have only a limited insight into the circumstances and motivation for the manslaughter offence.  
In the circumstance, the panel are not persuaded that your risk is manageable in open conditions and consider that further interventions to address your risk factors particularly in the areas of violence, drugs and criminal associations may well be required.  The panel consider that the next panel to consider your case would be assisted by a full psychological risk assessment to assess your treatment needs and, if further interventions are recommended, reports on the work you have done."
15.	Notwithstanding the content of paragraph 3 of the direction to which I have referred, as is apparent from its title, "Assessment of risk of re‑offending and serious harm", paragraph 6 of the decision under challenge is focused on the risk of Mr Hoffman causing serious harm to the public by re‑offending and whilst this approach is consistent with the test for release of life prisoners, it makes no mention of what the board considered the risk of re‑offending to be in open conditions as opposed to on release.  
16.	It is plain from the authorities and in particular the judgment of Mr Justice Supperstone in R (Hill) v Parole Board [2012] EWHC 809 (Admin), that suitability for release and suitability for open conditions require the application of different tests.  The former is a threshold test, whereas the latter, the one with which the Parole Board should have been concerned in this case is a balancing test.  
17.	Direction 5(a) requires consideration of progress in addressing and reducing risk in the context of a lifer being released on temporary licence as part of the balancing exercise.  The Parole Board decision did indeed look at evidence of change in its reasoning and documented the various courses undertaken and of course the fact that the Claimant had previously been transferred to open conditions in 2011, his good custodial behaviour during that period and the fact that he was released in 2012 as well as the further courses completed since recall and his good custodial behaviour since recall.  What is conspicuously lacking, as it seems to me, however, from the Parole Board's reasoning is any evaluation against that background of whether Mr Hoffman would, in the Board's view, be likely to comply with the conditions of temporary release or whether he was considered trustworthy enough not to respond.  Moreover, there is no explanation as to why the further interventions referred to in paragraph 6 of the decision needed to be carried out in closed conditions as opposed to in open conditions, particularly significantly bearing in mind that the claimant's offender manager Ms Samuel took the view that any work around the manslaughter offence could take place in one‑to‑one sessions in open conditions.  
18.	There is really nothing more than a bald statement in the final paragraph of paragraph 6 of the decision to the effect that the Panel are not persuaded that the risk is manageable in open conditions.  In my judgment that does not begin to demonstrate that the Parole Board has carried out the balancing exercise it is required to carry out.  As Dame Janet Smith, as she then was, put it, in the case of R (Gower) v The Parole Board CO/1640/2000 at paragraph 38:
"I acknowledge of course that it is not incumbent upon the board to set out its thought processes in detail or to mention every factor they have taken into account.  However, in my judgment the balancing exercise they are required to carry out is so fundamental to the decision making process that they should make it plain that this has been done and to state broadly which factors they have taken into account.  It does not appear to me that there has been any real attempt to balance risk against benefit." 
19.	In my judgment, in this case, the Parole Board have conspicuously failed to make it plain what factors they have taken into account.  They have focused only on the risk.  That being so, I have no doubt that the decision should be quashed and the question of transfer to open conditions reconsidered by the Parole Board.  
20.	Having come to that conclusion in respect of the challenge on the basis of a failure to carry out the balancing exercise, there is no need for me to go on to consider the other grounds put forward on the claimants' behalf, about which I say nothing further.
21.	 
22.	JUDGE MCKENNA:  What order do you want? 
23.	MS SIKAND:  My Lord, just formally that, I suppose, that the application for judicial review is granted, that the decision of the Parole Board dated 25 September 2014 is quashed and that the consideration of the claimant's request to be transferred to open conditions be remitted for fresh consideration by the Parole Board. 
24.	JUDGE MCKENNA:  That would seem sensible.
25.	MS SIKAND:  Could I add and that it be treated as a priority listing?  It takes something like six months. 
26.	JUDGE MCKENNA:  I will certainly add that.  What effect that will have I do not know. 
27.	MS SIKAND:  It means that it will not be listed urgently because it will probably tally with his next statutory review but instead of having to wait six months it may be that he is heard slightly faster if it is given priority listing status. 
28.	JUDGE MCKENNA:  Yes. 
29.	MS SIKAND:  The next two orders are related to costs, my Lord, which is the standard order that the defendant pay the claimant's cost to be assessed if not agreed. 
30.	JUDGE MCKENNA:  Yes.
31.	MS SIKAND:  Lastly, that there be detailed assessment of the claimant's publicly funded costs. 
32.	JUDGE MCKENNA:  Yes.  I am happy to make all five of those orders. 
33.	MS SIKAND:  Thank you very much, my Lord. 
JUDGE MCKENNA:  Thank you.