ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
MR JUSTICE BURTON
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MOORE-BICK
LORD JUSTICE AIKENS
| THE QUEEN ON THE APPLICATION OF MICHAEL DOWNS
|- and -
|THE SECRETARY OF STATE FOR JUSTICE
Mr Matthew Slater (instructed by The Treasury Solicitor) for the Respondent
Hearing date: 13th October 2011
Crown Copyright ©
Lord Justice Aikens:
I. The Category A Review Team's work and the law relating to oral hearings of CART reviews
II. The Chronology of events in this case up to the CART decisions
"4. So far as the aggravated burglary is concerned in 1974, the victim was then 57. The Claimant, who was known to her because he was a laundry roundsman for her private guest house, broke in. He was masked and armed with a hammer and a knife, and a length of washing line. He pressed the line to her throat and hit her with a hammer, although no serious injury was caused, and he did not speak. She offered him £300 in notes, and he seemingly took only £100. And then the learned judge records at one stage he pushed her on the bed and unzipped his flies, but there was no evidence of intercourse or of ejaculation.
5. ….The facts of [the first] murder were that the victim was found in the kitchen dead from stab wounds, two in the back and one in the chest; her pyjama bottoms, and the washing line brought in by the Claimant, on the findings of the jury, were found in the lounge; and there was no theft evident.
6. As for the second murder, he again broke into the victim's house, again cut the washing line, and she was found there with the lower part of her body exposed. Death was due to a stab wound in her back, but there were some 38 minor cuts and bruises, including injuries to the breasts, and again nothing was stolen, even though the Claimant asserted that theft was his motive."
"It is important to note that I am not in a position to definitively assess Mr Downs' need for SOTP; an SOTP treatment team would be qualified to do this. However, I am accredited in the use of the SARN assessment tool, the outcome of which, in my view, should be the fundamental consideration when assessing individuals for sex offender treatment."
"Mr Downs has been a Category A Prisoner for 22 years and we submit that his escape is impossible as he has no means by which to do so; if he were to escape, he would not be highly dangerous to the public, police or the security of the state as he presents as a very ill individual who is unable to walk far distances and requires a lot of medical attention. During his incarceration, he has participated in numerous offending behaviour programmes and therefore reduced the risk he poses to the public and of re-offending".
"An independent psychologist, Ms Sally Wilson, has assessed Mr Downs as unsuitable regarding the SOTP course. A copy of her report is enclosed within these representations. Mr Downs has recently been given the assessment forms for the SOTP course which he has completed and returned however he has no intention of completing the SOTP course as he has not been convicted of any sexual elements within the index offences".
"If Mr Downs is not granted a downgrade in security category at this stage, we respectfully request that consideration is granted for an oral hearing in order to assess the risk further. We refer you to the recent judgement in the case of R (Riley) v Gov HMP Frankland where it was held that failure to hold an oral hearing to review an inmate's Category A status was unlawful".
I have taken that last passage to be a request that there be an oral hearing of Mr Downs' 2010 Category A Prisoner status review.
"The Panel recommend that Mr Downs remain Category A. Mr Downs needs to engage in recommendations made from SOTP and address outstanding treatment needs in relation to use of violence dependant on completion of SOTP. The Representations made by Tuckers Solicitors were considered by the Panel".
III. The two CART decisions
"…notwithstanding the state of dress the murder victims were found in, the report did not conclude that your offending was sexually motivated. It was submitted that you would benefit from a therapeutic community with a better environment in which to address your offence-related schemas and personality traits than the SOTP".
"However, the Category A Team noted that you were currently denying the sexual element to your offending. The Category A Team also noted that representations submitted by your solicitors including the independent psychology report had failed to deal adequately with the issue of your current risk to the public and this was also the conclusion of the LAP at the prison.
The Category A Team were also satisfied that there were no exceptional circumstances in your particular case, including your age and ill health that would warrant an oral hearing.
The Category A Team can confirm that given the remit of the review process it could not countenance a downgrading of a prisoners security category in order to facilitate a progressive move or to access courses in conditions of lower security category, without first evidencing a significant reduction in risk.
Given the gravity of the present offences and your offending history which evidenced a propensity for extreme violence, and the lack of any evidence at present, through offence related work or otherwise, that the risk of you re-offending in a similar way if unlawfully at large had significantly diminished, the Category A Team concluded that you must still be regarded as potentially highly dangerous, particularly to women.
On the information available, the Category A Team concluded that there were at present no grounds on which a downgrading of your security category could be justified and that you should remain in Category A."
"…the report writer was not in a position to definitely assess your client's need for the SOTP, and an SOTP treatment team would be qualified to do this – a position also held by psychologist (sic) at the prison – that your client engage with the SOTP treatment team to assess his suitability for the SOTP".
"The Category A Team noted that there had been very little merit in the submissions forwarded by representatives on behalf of Mr Downs and that your submissions had provided no evidence of diminished risk in relation to the danger your client presented as evidenced by the serious nature of his offending. The Category A Team can again confirm that there were no exceptional circumstances highlighted in submissions that would necessitate an oral hearing in the interest of fairness."
IV. The judgment of Burton J.
V. The arguments of the parties on the appeal
VI. Discussion and conclusion
Lord Justice Moore-Bick:
Lord Justice Pill:
3.2. For the purpose of this forensic psychological assessment, which incorporates three tools of assessment, I met with Mr Downs at HMP Wakefield on 6 March 2009 for just over four hours. A clinical interview was undertaken in order to fully consider issues pertaining to risk factors and the impact of offending behaviour interventions. The Structured Assessment of Risk and Need (SARN) tool was used to structure the clinical interview in order to ensure all relevant information relating to risk of sexual offending was fully considered. The SARN is an "empirically guided" process for identifying factors related to risk of sexual offending. That is, it directs the assessor to consider only factors that are known to affect likelihood of further offending. Each potential risk factor is carefully defined and assessors, such as myself, are fully trained in applying the framework.
4.5 Mr Downs pleaded guilty to all three offences during trial. He explained, during interview (06.03.09), that he did so because the police had assured him that he would be sentenced to a secure hospital rather than prison; this placement did not transpire and Mr Downs has since withdrawn his admission of guilt regarding the murder of Ms Weaver in 1978. It is, therefore, difficult to assess the motivation and associated risk factors in relation to this offence. Mr Downs does, however, continue to accept responsibility for the offences of murder and aggravated burglary relating to Ms Morris.
6. Clinical Interview/Assessments
6.1 As indicated in Section 4.6 of this report, there are conflicting views amongst report writers regarding the extent to which Mr Downs' offences were sexual in nature and his subsequent need to address risk of sexual offending within treatment. Some reports within the parole dossier conclude that Mr Downs sexually interfered with Ms Morris, citing an injury to her vagina as evidence of this. It is of note, therefore, that the witness statement of Suresh Prasad Srivastara, General Practitioner (12.07.88) reports that, in relation to the aggravated burglary offence committed in 1974, there was a 'laceration at the inner aspect of the fourchette [a small fold of membrane, connecting the labia in the posterior part of the vulva]. The hymen was not intact but there was no evidence of recent injury'. Based upon the information available, there was no evidence of sexual interference, penetration or ejaculation in relation to any of the offences. However, given that in the cases of both murders the victims were found part-naked it is, perhaps, responsible to conclude that there was some sexual element to these offences. Mr Downs' ongoing stance of denying responsibility for the lack of clothing of the victims, will have an impact upon his suitability for treatment. This will be addressed in Section 7.
Static Risk Assessment
6.2 The Risk Matrix 2000 (Thornton, 2000) uses simple factual information about offenders' age and past history to divide them into categories that differ substantially in their rates of reconviction for sexual or other violent offences. In applying this assessment to the case of Mr Downs, I have classed his court appearance for the index offences as being in relation to offences with a sexual element. According to the Risk matrix (RM2000), relative to other offenders, Mr Downs presents a medium risk of sexual recidivism (19% likelihood over 15 years), a medium risk of future violence (19% likelihood over 15 years) and a medium risk of further sexual or violent offending (34% likelihood over 15 years). As not all re-offences result in reconviction, actual rates of re-offending are likely to be higher than this, but it is not possible to say precisely how much higher. However, it should be noted that this is an actuarial assessment, based upon historical factors. The risk levels presented here may be / may have been modified through risk reduction and relapse prevention strategies or interventions. The use of a tool such as the SARN (Structured Assessment of Risk and Need) is, therefore, recommended in order that any modifications in risk can be identified and explored. It is also of note that the RM2000 only assesses reconviction rates and does not indicate likely level of harm that would be caused by further offending.
Dynamic Risk Factors
6.3 I have conducted an assessment of the dynamic (changeable, psychological) risk factors associated with Mr Downs' sexual offending. My assessment uses the Structured Assessment of Risk and Need (SARN) Treatment Need Analysis (TNA) framework. The SARN TNA is an "empirically guided" process for identifying factors related to risk. That is, it directs the assessor to consider only factors that are known to affect likelihood of further sexual offending. Each potential risk factor is carefully defined and assessors are fully trained in applying the framework. Assessors should also have demonstrated competence in the use of the assessment by successfully undertaking inter-rate reliability examinations. This tool is intended to be used routinely by sex offender treatment teams within HM Prison Service to identify an individual's level of risk and need in relation to sexual offending. It is not clear whether this assessment was carried out by HM Prison Service prior to Mr Downs commencing sex offender treatment in 2004.
6.5 Risk factors are divided into four domains; Sexual Interests, Offence Supportive Attitudes, Relationships and Self-Management. A grid outlining the scores allocated to each risk factor in the case of Mr Downs can be found in Appendix F. Having utilised the SARN network, I have concluded that Mr Downs has only one strong characteristic risk factor (that is, it is central within the offence chain and also strongly characteristic within his life more generally). The risk factor relates to 'Not Knowing How to Solve Life's Problems' and falls within the Self-Management domain. It is discussed further below.
6.8 Due to Mr Downs' stance in relation to the 1978 murder of Ms Weaver, it is not possible to explore the extent to which his poor problem solving was an antecedent to her death.
6.18 As previously mentioned, Mr Downs denies having committed the murder in 1978 and so his lifestyle around this time, and the implications it had for his risk of offending, were not discussed during interview.
6.26 Based upon the application of the SARN, Mr Downs is assessed as having an overall low level of dynamic risk and a low level of treatment need in the area of sexual offending.
7.2 I have been asked to prepare a report to assist in the preparation of this case to The Parole Board. To my mind this includes commenting upon areas of risk, progress made in reducing risk, current level of risk and recommendations for the future. Furthermore, I have been instructed to comment specifically upon Mr Downs' level of treatment need in relation to the Sex Offender Treatment Programme (SOTP).
7.4 Having explored elements of Mr Downs' psychological functioning through the use of the Young Schema Questionnaire and the IPDE Screening Questionnaire, as well as having administered the SARN assessment, it is my view that his offending was more likely driven by poor problem solving and out of control emotions and urges, within the context of an unstable lifestyle and beliefs of women having wronged him in the past. Heavy use of alcohol is likely to have contributed to the risk of violence within the offending situations, although Mr Downs has also reported incidents of violent behaviour that occurred when he was sober (interview, 06.03.09).
7.14 In my opinion, although Mr Downs has started to address some of his dynamic risk factors (not knowing how to solve life's problems and out of control emotions and urges), there remain some that are yet to be directly addressed. However, based upon my view that Mr Downs' offending was not sexually motivated and also taking into account his current age, I suggest that the Risk Matrix 2000 is likely to have overestimated his level of static risk. Through the application of the SARN risk assessment, one might conclude that Mr Downs has an overall low level of dynamic risk and a low level of treatment need in the area of sexual offending.
7.15 The OASys Two Assessment authored by Robert West (08.12.06) assessed Mr Downs as presenting a high risk of harm to the general public. Whilst, in my view, the likelihood of him re-offending can be considered to be relatively low I would concur that, based upon previous offending behaviour, should Mr Downs re-offend, risk of harm would be high.
7.19 I have been instructed by Mr Downs' legal representative to specifically consider the appropriateness of the Sex Offender Treatment Programme (SOTP). It is important to note that I am not in a position to definitively assess Mr Downs' need for SOTP; an SOTP treatment team would be qualified to do this. However, I am accredited in the use of the SARN assessment tool, the outcome of which, in my view, should be the fundamental consideration when assessing individuals for sex offender treatment.
7.20 It could be argued that, given the state of dress in which the murder victims were found, there is some sexual element to some of Mr Downs' offending. However, having considered all of the information available to me and utilised the SARN, I have concluded that Mr Downs' offending was not sexually motivated and it is unlikely that the offences led to sexual arousal on his part. The outcome of the SARN indicated that he has an overall low level of dynamic risk and a low level of treatment need in the area of sexual offending. Furthermore, the areas within the SARN identified as treatment needs related predominantly to the Self Management domain and to how Mr Downs views himself and other within the context of close relationships. I would, therefore, suggest that Mr Downs would benefit more from cognitive skills and schema-based interventions that directly address these areas, rather than sex offender treatment per se.
7.25 I would not currently recommend a move to open conditions in the case of Mr Downs; in my view there are outstanding treatment needs to be addressed before he can be considered for such a move. However, whilst I acknowledge that it is not the role of The Parole Board to comment upon a prisoner's security category, I feel that it is important to highlight the paradox of Mr Downs' current position. As recently as 20 February 2009, the Category A Committee at HMP Wakefield recommended that Mr Downs remain classified as a Category A prisoner, precluding his progress to a prison outside the High Security Estate. The reason given was that there had been no reduction in risk during the reporting period. In essence, Mr Downs had not completed the Sex Offender Treatment Programme. In my view, Mr Downs' assessed level of risk is not such that it requires high security conditions. Furthermore, he is ostensibly being held there in order to undertake SOTP, which I view as an inappropriate treatment option. He is also, in my view, being precluded from accessing other, more appropriate treatment options such as a therapeutic community, located in the Category B Estate.