QUEEN'S BENCH DIVISION
B e f o r e :
|THE QUEEN ON THE APPLICATION OF POTTER & Ors.|
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT & Anor.|
Smith Bernal Reporting Limited, 180 Fleet Street,
London EC4A 2HD
Tel: 0171 831 3183
(Official Shorthand Writers to the Court)
MR. C. ROSS-MUNRO Q.C. and MR. N. BLAKE (Instructed by Messrs. Hickman & Rose, London) appeared on behalf of the Claimants Cavanagh, Gorman and Vickers.
MISS E. GREY (Instructed by the Treasury Solicitor) appeared on behalf of the Defendants.
Crown Copyright ©
MR. JUSTICE MOSES:
1. In the case of three of the claimants (Cavanagh, Gorman and Vickers) that their enhanced level status, granted to them at previous prisons before transfer to Frankland, should have continued to have effect at Frankland. This is a live issue only in relation to Vickers, the defendant having accepted that the status of Cavanagh and Gorman should have been maintained until the time came for assessment of their progress.
2. That refusal to grant enhanced status on the grounds of ineligibility to attend an SOTP by reason of denial of guilt is either contrary to the local or national IEPS or the policy is itself unfair, irrational or in breach of their rights enshrined in the European Convention on Human Rights.
"There should by established at every prison systems of privileges approved by the Secretary of State and appropriate to the classes of prisoners there, which will include arrangements under which money earned by prisoners in prison may be spent by them within the prison."
"Nothing in this rule shall be taken to confer on a prisoner any entitlement to any privilege or to affect any provision in these Rules other than this rule as a result of which any privilege may be forfeited or otherwise lost or a prisoner deprived of association with other prisoners."
SCHEME PROVISION RELATING TO CARRY FORWARD OF ENHANCED STATUS By paragraph 7 of IG 74/1995:
"Privilege levels should be as portable as possible (see paragraph 28 of Annex A). Establishments are strongly recommended to seek information on the privilege levels of sending and receiving establishments."
"...account should be taken of the portability of earned privileges and regime levels when setting up local schemes.... It should be possible to transfer to the same privileges level in a different establishment, but not necessarily to enjoy the same privileges."
"Prisoners coming into the scheme must enter schemes at the standard level, and no lower than standard following transfer from another establishment ... It should normally be possible for enhanced level prisoners to receive enhanced privileges on transfer to a different establishment although the privileges themselves may be different" ...
"...account needs to be taken of the portability of earned privileges and regime levels when setting up local schemes... This can best be achieved by properly structuring the expectations of prisoners about the availability of privileges in other schemes and by the exchange of good quality information between sending and receiving establishments. It should therefore be possible to transfer to the same privileges level in a different establishment, but not necessarily to enjoy the same privileges. Quick reassessments on arrival ,,, will be necessary..."
CARRYING FORWARD ENHANCED STATUS (CALLED IN THIS CASE BY THE NEOLOGISM "PORTABILITY")
"There is no evidence in your record or sentence plan to indicate that you were ever enhanced privilege status."
"I can confirm that you were located in an enhanced cell on the segregation unit and that you enjoyed the benefits of the enhanced regime."
POLICY OF REFUSAL OF ENHANCED STATUS TO SEX OFFENDERS
WHO DENY THEIR GUILT
"(a) to provide that privileges generally are earned by prisoners through good behaviour and performance and are removable if prisoners fail to maintain acceptable standards;
(b) to encourage responsible behaviour by prisoners;
(c) to encourage hard work and other constructive activity by prisoners;
(d) to encourage sentenced prisoners' progress through the prison system; and
(e) to create a more disciplined, better controlled and safer environment for prisoners and staff." [my lettering].
" . to encourage responsible behaviour by prisoners;
. to encourage hard work and other constructive activity by prisoners;
. to encourage sentenced prisoners to progress through the prison system; and
. to create a more disciplined, better controlled and safer environment for prisoners and staff."
"1. to provide privileges which are earned by prisoners through good behaviour/performance and are removable if prisoners fail to maintain acceptable standards
2. to encourage responsible behaviour by prisoners
3. to encourage hard work and other constructive activity by prisoners
4. to encourage prisoners to participate in the sentence planning process and to progress through the prison system
5. to create a more disciplined, better controlled and safer environment for prisoners and staff
6. to encourage and support prisoners addressing their offending behaviour" [my lettering].
The schemes make provision as to the link between sentence planning and incentives leading to the grant of privileges, governed by an overall standard of fairness. IG74/1995, paragraph 39 of Annex A, provides:
"The principal difference between sentence planning and incentive schemes is that sentence planning should take place irrespective of the level of privileges or regime in which a prisoner is placed: education, training, employment and offending behaviour programmes set to meet sentence planning objectives are not privileges. Incentives and privileges need to be compatible with sentence planning objectives which must be appropriate and set by staff involved in both activities."
"If an incentives system is to operate effectively and consistently, in ways perceived to be fair by all who have an interest in it, the standards expected of prisoners, and the consequences of meeting or failing to meet them, must be clear".
"Incentives and privileges need to be compatible with sentence planning objectives, appropriate to the needs and capabilities of the prisoner and set by staff involved in both activities. In particular when linking incentives and privileges with sentence planning the following questions need consideration:
. is the sentence plan appropriate in terms of the prisoner's needs and what can be realistically expected of him/her?"
"Local schemes operating under the national framework will only be sustainable and achieve local and national aims if they are underpinned by a fair and just process and perceived as fair by prisoners."
THE BROAD SUBMISSIONS IN RELATION TO FAIRNESS AND RATIONALITY
APPROACH OF THE COURT
"...I have some misgivings in principle as regards the privilege cases. They are attempts to review executive decisions arising wholly within the context of internal prison management, having no direct or immediate consequences for such matters as the prisoners' release. While this court's jurisdiction to review such decisions cannot be doubted, I consider that it would take an exceptionally strong case to justify its being done."
"There are plain dangers and disadvantages in the court's maintaining an intrusive supervision over the internal administrative arrangements by which the prisons are run, including any schemes to provide incentives for good behaviour, of which the system in question here is in my judgment plainly an example. I think that something in the nature of bad faith or what I may call crude irrationality would have to be shown, which is not suggested here."
"...the scheme does not proceed upon any illegitimate assumption of the relevance of risk. As regards the question whether there is an unlawful fetter of discretion, I cannot think that a clear system for incentives within the prison can sensibly be expected to operate if its administrators have to consider whether in any individual case the scheme's established criteria ought to disapplied... There is no principle of our administrative law which says, in a milieu such as this, that there cannot be black-and-white rules."
"It may well be, however, that the law can never be satisfied in any administrative field merely by finding that the decision under review is not capricious or absurd."
"The well-known proposition that managers should be left to manage applies a fortiori in regard to prisons, save were a clear case is made out for relief ex debito justitae."
",,,for my part I consider that the court should be very slow to impose strict procedural standards upon the internal workings of the prison system in so sensitive a context as transfers between prisons and categories where to do so might create very real prejudice, not just to the efficacy but to the security of the system and in circumstances where the court cannot itself confidently judge the degree of prejudice that might arise."
CONCLUSIONS AS TO FAIRNESS
"He has done no real offending behaviour work to date. He really needs to channel his energies into addressing his offending behaviour..."
"You keep on going on about coming to terms and accepting index offence. As far as I am concerned you can go on about it as much as you want [I] am not now or ever going to fall down at your feet, cry shame, remorse or guilt and beg forgiveness. I have committed no offence. You seem to be under the impression [I] am going to finally except (sic) the offence."
"In the long term Vickers would benefit from participation in the S.O.T.P. However, in order to do so he must accept full responsibility for the offence and in doing so, develop a victim empathy."
"You are not prepared to complete the appropriate offending behaviour courses which would enable you to reduce risk in areas that have been identified."
"As a rule of thumb, men who totally deny even being in the vicinity of the offence are probably unready for treatment. However, men who admit sexual contact but claim it was consenting should not automatically be excluded..."
"Total deniers are excluded from treatment as the programmes require group members to give a full account of their sexual offending, in order to develop a comprehensive understanding of their motivation. Someone who denies any sexual contact with his victim is clearly unable to do this. However, it can also been seen that there may be scope for participation in the course if there are partial admissions of the victim's account."
"There may be instances in which the course [SOTP] is not deemed suitable, at least not immediately. For example, it is possible that in some cases our psychology department may advise that the offender would not be capable of participating in the course, or the group-work required, if his offences are linked to traumatic incidents in his own past. Such a judgment might be made as a result of the SOTP assessment..."
REJECTION OF THE VIEWS OF THE OMBUDSMAN
"Such an outcome cannot to be acceptable. First, while a prisoner may deny his current conviction he or she may be willing to engage in courses directed at reducing his or her risk factors relating to previous offences or lifestyle. Second, although I understand that the Prison Service cannot substitute its opinion on a prisoner's guilt or innocence for that of the court, I cannot see that it is fair or desirable to debar a group of prisoners indefinitely from the benefits of enhanced status. Nor is such an approach consistent with the other goals of IEPS. Third, I note that other high security prisons do not operate Frankland's policy of a blanket ban ....
"4.8. What is needed is a more balanced approach. Attitude towards offence and willingness (or otherwise) to take part in activities to address offending behaviour are quite properly key elements in IEPS. But just as the Parole Board is enjoined to take a balanced view of the risk presented by prisoners who deny their offence, so should the Prison Service. It is in the interests neither of good institutional behaviour nor of reduced risk to the public if those who deny their offence are prevented from enjoying the benefits of enhanced status no matter what else they do or how long they remain in prison."
"As you will appreciate, a relevant factor in measuring behaviour and performance of the IEPS is the prisoner participating constructively in sentence planning, including where appropriate addressing offending behaviour. Where a prisoner refuses to address his/her offending behaviour (for whatever reason) this will be of relevance in assessing a prisoner's privilege status. To do otherwise would be seen as undermining the judgment of the Court."
"In any event, a prisoner's denial of guilt does not automatically debar him from obtaining enhanced status..."
THE HUMAN RIGHTS ACT
"Imprisonment is incompatible with the exercise of conjugal rights and consequently involves an interference with the right to respect for family life under article 8..."
"...the purpose, or at least a purpose, of imprisonment is to punish the criminal by depriving him of certain rights and pleasures which he can only enjoy when at liberty. Those rights and pleasures include the enjoyment of family life..."
MISS GREY: If your Lordship goes back to the detail of the remedy that is sought in these cases, the remedies sought by the claimants in Cavanagh, Vickers and Gorman were a quashing order to quash the decision dated -- and then in each case the latest decision of the board was set out -----
MR. JUSTICE MOSES: So that is no problem.
MISS GREY: No, my Lord, and I would say that the appropriate relief to be granted in this case is to dismiss those applications for quashing orders.
MR. JUSTICE MOSES: Yes.
MISS GREY: And your Lordship has covered already in the judgment the grounds of illegality which your Lordship has found in relation to the portability issue. I would suggest that there is no need for any further recitation or declaration on those lines. Your Lordship may care to note, however, that the date at which Vickers was first assessed within Frankland was 9th February 2000.
MR. JUSTICE MOSES: So what is the period when he should have been on enhanced status?
MISS GREY: From June 1999 -- yes, 26th June 1999 -- paragraph 2 of my skeleton -- and then I set out a little further in paragraph 10 the date at which he was first assessed as 9th February 2000, so you might care to note that.
My Lord, with those observations, I would respectfully suggest that your Lordship simply dismisses these applications. In relation to costs, I would suggest that there be the Secretary of State's costs in relation to Potter, but not to be enforced without the leave of the court, so the usual legal aid order.
MR. JUSTICE MOSES: That is no longer the right order, is it. It has been extant for over a year and a half, so we are both shamed. But I will make whatever the current order is in relation to that.
MISS GREY: Yes, but in relation to Cavanagh, Vickers and Gorman, your Lordship will recall that we offered to pay the costs of the portability issue. However, we have won on the substantive issue. I would suggest that there be no order as to costs.
MR. JUSTICE MOSES: Yes.
MR. BLAKE: My Lord, with respect to costs I say there should be an order in respect of Cavanagh and Gorman, as was the note your Lordship had, from the 15th. Effectively it would be up to the first day of the hearing when the agreement was -----
MR. JUSTICE MOSES: But you lost on the main points. This was all -- apart from £190 and £110; not inconsiderable sums for a prisoner -- apart from those sums, it was completely academic winning the portability point.
MR. BLAKE: In respect of Vickers, we say that ... in respect of the costs, as your Lordship found against other aspects of his claim.
MR. JUSTICE MOSES: How will it work out in the end? What actually happens? How can any taxation officer work out who should have what?
MR. BLAKE: I agree it would not be easy to ----
MR. JUSTICE MOSES: I am just not doing my job if I leave it in a mess.
MR. BLAKE: I do not think there is anything else I can say in that regard.
MR. JUSTICE MOSES: Yes. What I was proposing to say is that all three of those claimants should have half their costs up to the first day of this hearing; and otherwise that you should have the costs, which will all sort of balance out, but not to be enforced. So it is all absolutely academic. Otherwise the thing is a complete mess.
MISS GREY: Well, my Lord, they may have half of their costs, but we are entitled to our costs thereafter, and that would involves a taxation exercise whereby they have to work out their costs and we have to work out our costs with -----
MR. JUSTICE MOSES: Nobody is ever going to do anything about it, are they?
MISS GREY: Well, my Lord, they have a duty to the Legal Aid Board and I suspect that they may feel that therefore they have to go through the exercise of working out what their costs were and we in turn will have to respond.
MR. JUSTICE MOSES: That will absolutely disastrous and will cost even more. What do I do about it?
MISS GREY: Well, firstly, just for the record it was the case that we offered to pay the reasonable costs in pursuing the portability issue.
MR. JUSTICE MOSES: Who works out what they are?
MISS GREY: Quite, my Lord, and I have to say that I would submit that must be less than half of the costs incurred because that was a relatively short issue -- a historic point -- and the main part of the work appears to have gone into the other issues.
MR. JUSTICE MOSES: Can you just tell me what I ought to do as a matter of practicality so that nobody need be bothered to any great extent about something that is completely academic?
MISS GREY: My Lord, as a matter of practicality, rather than having both parties going through the exercise of drawing up their costs, apportioning them and setting those out, I would suggest that no order as to costs reflects the reality and the just outcome and is must likely to save further public expense.
MR. JUSTICE MOSES: For either side.
MISS GREY: Indeed, for either side.
MR. JUSTICE MOSES: The whole thing.
MISS GREY: Yes, and I have asked for what I called the usual order against Potter, but it makes little -----
MR. JUSTICE MOSES: Is that not a sensible way? Otherwise, your solicitors are all going to have to -- it is going to be disastrous. Hours are going to be wasted at public expense.
MR. BLAKE: My Lord, yes.
MR. JUSTICE MOSES: I will say there will be no order as to costs in relation to those three claimants, and for Potter -- theoretically, unless he wins the horses, it is all completely academic.
MISS KRAUSE: My Lord, yes, I cannot resist the application for costs, but I would ask that your Lordship extend the order as to costs to Potter also.
MR. JUSTICE MOSES: No, he must pay the costs, but any order to be postponed or whatever the correct terminology is. Anything else?
MR. KRAUSE: My Lord There is an application for legal aid assessment.
MR. JUSTICE MOSES: Yes, you may have that order, all of you, and thank you very much.
MR. BLAKE: And the only other application is permission to appeal.
MR. JUSTICE MOSES: On what grounds?
MR. BLAKE: We would say that this is a very important point affecting the whole of the prison population in respect of sex offenders, and it is effectively the first case to attract the court's attention since Hepworth. With deference to the judgment your Lordship has just given, we would say that it is important from the point of continuity. We say that the evidence ... shows there is something to be looked at.
MR. JUSTICE MOSES: Thank you very much. Do you want to say anything, Miss Krause?
MISS KRAUSE: I simply join that.
MR. JUSTICE MOSES: I will not give permission. There does not seem to me to be any real point of principle over and above that already decided which has now been law for some considerable time in Hepworth, and the questions of fairness and so on have now all been dealt with by the Court of Appeal in the decision in Mellor.
Thank you all very much indeed.