England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT)

		Royal Courts of Justice Strand London WC2
		30th November 2001

MR. JUSTICE MOSES:

INTRODUCTION

1. All four claimants are serving prisoners. They have all been found guilty of serious sexual offences. In these applications for judicial review, consolidated by order of the court, they challenge decisions refusing them enhanced status under the Incentives and Earned Privileges Scheme ("IEPS") operated at Her Majesty's Prison Frankland. All four claimants have been refused enhanced status because the Prison Service does not regard them as eligible to attend a Sex Offenders Treatment Programme ("SOTP") whilst they maintain a denial of guilt.
2. The claimants challenge this refusal on two main grounds:

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.

3. I shall turn to the more focused arguments advanced later, but I mention that, in addition, the claimant Potter relies upon a decision of the Prison Ombudsman in his favour which, he contends, should have been followed in the absence of cogent reasons for maintaining the refusal of enhanced status.

THE IEPS

4. The National and local schemes have been laid down pursuant to the Prison Rules 1999, made in the exercise of the Secretary of State's statutory power conferred by section 47(1) of the Prison Act 1952. By Rule 8(1) of the 1999 Rules:

"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."

5. By Rule 8(5):

"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."

6. Two National schemes are relevant to the issues because the issues span the period during which different National schemes were in force. The first scheme was IG74/1995, which was in force between 17th July 1995 and 28th January 2000. It was replaced on that date by Order Number 4000.

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."

7. By paragraph 28 of Annex A:

"...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."

8. By paragraph 1.8.5 of Order No. 4000:

"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" ...

9. By paragraph 1.8.6:

"...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..."

10. The local scheme (Frankland 2000) stated: "You may have been on a higher privilege level at another establishment. If you have been transferred to Frankland for a non-disciplinary reason ... you will return to that privilege level when you are allocated to a wing."

CARRYING FORWARD ENHANCED STATUS (CALLED IN THIS CASE BY THE NEOLOGISM "PORTABILITY")

11. Cavanagh achieved enhanced status at HMP Liverpool. He was transferred to Frankland on 17th November 1998 and reduced to standard. He was advised that enhanced status would be restored to him; but it was not, even once he was placed upon the wing. He was assessed on 30th August 1999 as not being eligible for enhanced status.
12. Gorman was transferred from HMP Exeter, where he had achieved enhanced status, to Frankland in July 1998. He was there downgraded to standard level. Despite requests to have his status restored on assessment, in August 1998 he was told that he would not be considered for enhanced status.
13. In relation to both those claimants, the defendant now accepts that they should have been granted enhanced status until the time for their first assessment in accordance with the provisions of the National and local scheme. The only issue in relation to them is a question of compensation, with which it is agreed I cannot deal. The compensation primarily, if not exclusively, relates to a reduction in pay of small amounts of £190 and £110. It is to be hoped that in relation to such small amounts there will be no further dispute.
14. Vickers' claim to carry over his enhanced status from the prison (Manchester) where he was originally held is in dispute. He was on enhanced status following convictions for murder and abduction in 1999. He was transferred to Frankland in June 1999, where he was downgraded to standard level and was told he would not be granted enhanced status unless he completed the SOTP. He continued to apply for his enhanced status to be restored, namely for it to be returned to the level that it was at Manchester. On 7th April 2000, he was told that the prison could find no indication that he had been on enhanced level. He asserts that in fact his file showed that he had been at that level and that it had been read on his way to Frankland. On 8th April he was told that Manchester could find no evidence that he was on enhanced privileges and the wing manager commented: "Why not write to Manchester for confirmation as to your status at Manchester?" He adopted that suggestion and wrote on 8th April 2000, asking that they confirm that he had been on enhanced status at that prison.
15. On 23rd May Vickers was told that, because he could not take part in the SOTP in the face of his denial, he was barred from achieving enhanced status. But the prison officer went on:

"There is no evidence in your record or sentence plan to indicate that you were ever enhanced privilege status."

16. On 30th May the Prison Service wrote to him from Manchester, saying:

"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."

17. The defendant contends that there were grounds for not treating Vickers like the other two claimants. There were special circumstances which led to his being granted enhanced status at Manchester. Those special circumstances require further scrutiny. It is revealed in a second witness statement from Mr. Chapman that the reason that he was on enhanced status was that he was a vulnerable prisoner, but on Category A. Thus he had to be kept in a segregation unit. That segregation unit had particular facilities, such as plug points and televisions, and it was in those circumstances that, in the segregation unit, he continued to enjoy enhanced levels of privilege. This, it should be pointed out, was never explained to him. He was merely told, contrary to the terms of the scheme, that he should find out for himself the nature of his status at Manchester.
18. I accept that the mere fact that a prisoner is on enhanced status prior to conviction (namely when on remand) should not lead to enhanced status once he is convicted. The provisions in the National and Frankland schemes in relation to the ability to carry forward status seem to me only sensibly to have application to convicted prisoners. But it seems to me that the fact that there were special reasons for Vickers' enhanced status once he was convicted did not justify a refusal to apply the scheme provisions in his case. The National scheme, at paragraph 28, Annex A, IG74/1995, must have led Vickers to expect to remain on enhanced level, at least until he was assessed at Frankland. No one explained to him that the reason he was on enhanced level was special to him at Manchester. No one explained to him that it was not going to be continued because he was only on enhanced status for special reasons. On the contrary, prison officers did not believe him and would not find out for themselves. It was wrong to leave that prisoner to find it out for himself and when he was told by Manchester he was enjoying the benefits of enhanced status, it was not made clear to him that that was only for special reasons of protection.
19. It seems to me that, pending assessment, refusal to maintain Vickers' status was contrary to the scheme. He should have been allowed to maintain enhanced status until he was assessed, the date of which is not wholly clear to me. To that extent, his application succeeds.
20. That of course is not an end of the matter. All four claimants assert entitlement to enhanced status even after they were assessed. I turn, therefore, to the grounds for refusal of that status. The fact that they had previously been on enhanced status at other prisons is relevant to this issue, particularly in relation to the allegations of inconsistency.

POLICY OF REFUSAL OF ENHANCED STATUS TO SEX OFFENDERS

WHO DENY THEIR GUILT

The Schemes

21. There are three levels of privileges. Prisoners coming into the system enter schemes at standard level (see those provisions already read in IG74/1995 and 1.8.5 of Order 4000).
22. IG74/1995 describes the aim of the scheme as follows (paragraph 2, Annex A):

"(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].

23. The 4000 scheme identifies four aims (paragraph 1.3.1):

" . 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."

24. The local Frankland scheme identifies six aims:

"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."

25. Paragraph 2 of Annex D provides:

"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".

26. The 4000 scheme provides incentives and privileges but, by paragraph 1.9.1:

"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?"

27. Paragraph 1.2.2 provides:

"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."

28. Local schemes must be compatible with national schemes (see, e.g., paragraph 1.2.2 of the 4000 scheme). Further, there are procedures for both review and appeal through the complaints procedures.
29. Mr. Ross-Munro Q.C., on behalf of all the claimants save Potter, contends that as a matter of construction the sixth objective of the Frankland scheme is inconsistent with the aims of either National scheme. In neither National scheme is addressing offending behaviour described as an objective. Indeed, such weight has been placed on that objective at Frankland that it has led to an unjustified refusal of an enhanced status to these claimants in these cases.
30. I do not agree. Both under IG74 and the 4000 scheme, incentives afforded by the privileges scheme underpin sentence planning in which one of the primary objectives is addressing offending behaviour. This is an important concept embraced in the fourth aim of IG74, repeated in the third aim in the 4000 scheme and made explicit in paragraph 39 of Annex A of the IG74 scheme and paragraph 1.9.1 of the 4000 scheme. I see no inconsistency with the terms of the National scheme.

THE BROAD SUBMISSIONS IN RELATION TO FAIRNESS AND RATIONALITY

31. All four claimants contend that it is unfair and contrary to the schemes to require them to attend an SOTP in face of their denial of guilt. It cannot be said that it is appropriate, or appropriate in terms of the prisoners' needs, to impose such a requirement as a condition of granting enhanced status, or that it can realistically be expected of them to attend such a course. (I should interpose that I see no incompatibility between the old and new National schemes in this respect. The 4000 scheme merely makes explicit the provisions of paragraph 39 of Annex A of IG74.) Moreover, the schemes themselves require that they are perceived as fair by prisoners. Lack of fairness, it is contended, is compounded by the fact that those who deny other offences, however grave, are not deprived of the opportunity to attend courses which address offending behaviour in general, such as courses in relation to anger management. All the claimants in this case are model prisoners who, apart from this one hurdle, on which far too great weight has been placed, would have achieved enhanced status.
32. Alternatively, it is contended that the scheme, which requires someone who denies an offence to attend an SOTP, is irrational.

APPROACH OF THE COURT

33. These submissions led to some debate as to the correct approach of the court. The defendant relied upon the decision of Laws J. (as he then was) in R. v. Secretary of State for the Home Department, ex parte Hepworth & Ors. and R. v. The Parole Board, ex parte Winfield (25th March 1997, unreported). In that case Laws J. considered the refusal of the equivalent of enhanced status to those who denied their sexual offences. He said:

"...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."

34. He continued:

"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."

35. He concluded his judgment by saying:

"...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."

36. It is contended that this no longer represents a correct approach. The terms of the scheme themselves show the importance of targets in sentence planning being appropriate and being perceived to be fair. Further reliance was placed upon dicta of Lord Cooke in R. v. Secretary of State Home Department, ex parte Daly [2001] 2 WLR 1622, at paragraph 32, where he described the Wednesbury decision as "an unfortunately retrogressive decision in English administrative law", and continued:

"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."

37. I do not think it necessary in this particular case to attempt to analyse the dicta of Lord Cooke, delivered as they were in the context of the proper approach of the court when considering rights enshrined in the European Convention on Human Rights. This case is primarily, although not exclusively, concerned with the application of the Prison Department's policy to the decisions made in this case. If the decisions fall outwith the spirit or letter of the schemes, properly construed, then this court should say so. In relation to this argument, the primary argument is not that the schemes are irrational but rather that the decisions to require the prisoners to attend an SOTP was inappropriate and therefore unfair in the face of their denial of guilt.
38. I do not regard the decision of Laws J. as ruling out a challenge on such a basis. His decision is, however, of importance in emphasising that the chances of success in relation to challenges to decisions in relation to the IEPS will be rare and that the courts should be slow to interfere with decisions which relate to the management of prisons (see R. v. Deputy Governor of Parkhurst Prison, ex parte Hague [1992] 1 AC 101 at 115H to 116B).

"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."

39. After elevation, Laws L.J. returned to the theme of reluctance of court to interfere with prison management decisions in R v. Secretary of State for the Home Department ex parte Hirst [2000] Prison Law Reports 127, in which he said at paragraph 22:

",,,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."

40. The Court of Appeal, however, said in the same case ([2001] EWCA CIV 378 at paragraph 25), per Lord Woolf C.J.: "I accept the importance of the prison service being able to make decisions which are operationally important without having to go through the technical requirements of providing opportunities for making representations. However, the rules of fairness and natural justice are flexible and not static; they are capable of developing not only in relation to the expectations of contemporary society, but also to meet proper operational requirements. The ability of the prison service to meet both their operational needs and the needs for prisoners to be treated fairly can usually be achieved within the panoply of the requirements of fairness. On the whole, the courts will require considerable persuasion that administrative convenience justifies a departure from the principles of fairness which would otherwise be appropriate in a particular situation."
41. Thus requirements of fairness which are of sufficient flexibility to encompass operational difficulties and problems do provide a standard against which to test the quality of decisions in relation to IEPS. Fair schemes fairly applied are of importance to the quality of a prisoner's life in prison and to effective management, provided it is appreciated that the courts must be sensitive to those difficulties and alive to the fact that those who manage prisons are better placed to take a wider view of the demands of fairness than an aggrieved prisoner, who must necessarily have a confined perspective.

CONCLUSIONS AS TO FAIRNESS

42. There is, to my mind, nothing unfair or inappropriate in requiring a sex offender, guilty of serious sexual offences as these claimants were, to attend an SOTP, even if he denies he is guilty of those offences. It is a key purpose of imprisonment to encourage constructive behaviour by a prisoner and thereby reduce the risk of his reoffending and increase protection to the public. It is, therefore, fair and rational to encourage participation in a course which may reduce risk of reoffending by means of the schemes for providing an incentive to attend such a course and granting privileges to those who undertake such courses.
43. Prison management is entitled to operate the IEPS and the court is entitled to proceed on the basis that a prisoner, once convicted, is guilty of the offences that form the subject matter of those convictions. A prisoner is not entitled to rely merely upon his assertions of innocence to excuse himself from confronting his offences. Were it otherwise, the system of rewarding those who are prepared to confront their offences would be undermined. One who denies his offence should not reap the same rewards as one who is prepared to admit and confront them.
44. It can hardly be supposed that one who at first denies his sexual offences should straightaway be excused attendance on an SOTP. But if he persists in his denial, at what stage is it to be said that the denial is so entrenched that it is inappropriate to expect him to attend such a course? The question whether his denial is a good reason for non-attendance will depend upon the individual circumstances of the particular prisoner.
45. Those circumstances are considered in the process of sentence planning, as the facts of these particular claimants demonstrate. Sentence planning lies at the heart of the IEPS (see, e.g., paragraph 39, IG74 and 1.9.1 of 4000). Prisoners are encouraged to achieve the targets set in the individual process of sentence planning by the IEPS. It is through that process that that which can be reasonably required of a prisoner is ascertained. In the instance cases, this process can be observed.
46. In Cavanagh's case, a man guilty of serious sexual offences, his review stated as one of the targets in section 8 that he should come to terms and accept responsibility for current convictions. That was expressed as a target in section 4 at following reviews. It is plain that the reason he was not granted enhanced status was because (as it was put in a review which has the date 18th August 2000 in writing at the top):

"He has done no real offending behaviour work to date. He really needs to channel his energies into addressing his offending behaviour..."

47. The claimant responded in that review:

"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."

48. A subsequent review described the objective of coming to terms with his offence as being a target which was no longer appropriate, but it was further stated that it was plain that the reason that it was no longer appropriate was because he would not change his attitude to the offences for which he was convicted, and that was the reason given for refusal of enhanced status.
49. In relation to the other prisoners, similar reviews came to similar conclusions. The reaction of the prisoners was the same. For example, in relation to Vickers, it was said:

"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."

50. The board which reviewed the decision to deny him enhanced status repeated:

"You are not prepared to complete the appropriate offending behaviour courses which would enable you to reduce risk in areas that have been identified."

51. Similarly in relation to Gorman the review pointed out that his current attitude to offences when questioned on interview is still that of total denial and stated as a target: "To come to terms and accept responsibility for offences." The claimant's response was that he was not in denial; he had been wrongly convicted.
52. In relation to Potter, reviews identified as the target: "To come to terms with your offending and accept responsibility for your actions in order to be able to address offending behaviour." It was argued that it is unfair, if in the long term it was hoped that a prisoner should attend an SOTP, that he should not be able to achieve enhanced status by attending other courses in the meantime. But management was entitled to conclude that it would have been appropriate to attend an SOTP but for the prisoner's denial and that he would have attended earlier had it not been for refusal to confront his offences. The other courses are not specific to particular offences. Mr. Chapman of the Directorate of High Security Prisons says that some prisoners are set enhanced thinking skills and reasoning and rehabilitation courses as targets on their sentence plan, but they are not always gateways to more advanced courses. Some may not need them. The question of whether it is those courses, rather than more offence-specific courses, which should be attended depends upon the individual prisoner.
53. It is plain that, in relation to all these claimants, the management of the prison took the view that the only reason for these claimants not to attend an SOTP was their refusal to admit their offences. The justification for the need to admit offences before attending an SOTP is set out in the evidence of Joanne Shingler, a senior psychologist employed by the Prison Service. She states that the SOTP is based on research into what is known about sexual offenders and what works in reducing reoffending. She refers to papers on the efficacy of such a course. She then refers to a managers' manual which asserts that:

"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..."

54. She continues in paragraph 8:

"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."

55. This evidence also discloses the flexibility of the system, characterized incorrectly by Miss Krause on behalf of the claimant Potter as inflexible and a "blanket ban". The evidence of Mr. Chapman, particularly at paragraphs 8 and 11 to 13 of his first statement, demonstrates, to my mind adequately, the flexibility of the system. For example, he says at paragraph 11:

"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..."

56. Moreover, the process adopted in the case of each of these claimants demonstrates that sentence planning is directed at the individual circumstances of their cases.
57. Nor is there any basis for criticising the weight attached to the single requirement to attend an SOTP, as Miss Krause contended. I accept that the claimants would probably otherwise have qualified. But whether attendance on an SOTP was set as a long- or a short-term objective, the prison management was entitled only to reward those who addressed their offending behaviour. All these claimants failed on that ground. That ground was a sufficient ground for refusal of enhanced status.
58. Nor is it a proper basis for challenge that the SOTP does not work, as Miss Krause contended. The Prison Department was entitled, in managing the prisons, to proceed on the basis of the study and examination of the propriety of the course as disclosed in the evidence of Miss Shingler. There may be cases, as Miss Krause pointed out by reference to the decision in R. v. Secretary of State, ex parte Zulfikar (1995, The Times 26th July), where there is no risk of re-offending, even if the prisoner does not confront his behaviour by admitting guilt. There is no basis for saying any of these claimants fall within that category.
59. I conclude that there is neither anything unfair or irrational in the schemes or in their application to these prisoners in refusing enhanced status on the ground of a refusal to attend an SOTP in the face and by reason of their denial of their guilt.

INCONSISTENCY

60. That, however, is not an end of the matter. It is contended that the policy is inconsistent with the practice of awarding enhanced status to other prisoners who are not sex offenders who deny their offences. It is apparent from statistics produced by Mr. Chapman that those who deny other offences are from time to time granted enhanced status. The full explanation for this will depend upon the particular personal circumstances of those prisoners, as considered in their sentence plans. None of this is, quite rightly, before the court. But the fundamental distinction is between those who can address their offences by attending courses despite denial and those who cannot.
61. An SOTP requires an admission of guilt for the reasons advanced by Miss Shingler. It is also true that even some sexual offenders who deny their offences have achieved enhanced status. No inconsistency is thereby established. The reasons they have done so is made clear in the evidence of Mr. Chapman, in paragraph 11 to which I have already referred. Statistics are disclosed by Mr. Chapman, particularly that there are some 25 of those who deny sexual offences on enhanced status at Frankland. In his first statement he reveals at paragraph 7 that some of the explanation may be due to the transitional period during which the schemes were introduced.
62. It is further contended that there are inconsistencies between different prisons, and particular reliance is placed upon those prisons where these claimants had achieved enhanced status: Liverpool, Manchester, Exeter and also the Wold. These prisons are not, as the evidence of Mr. Fisk reveals, in the same category as dispersal prisons (save Manchester) and none of those prisons do in fact have an SOTP course, save for Manchester.
63. The true comparators are the dispersal prisons which are identified by Mr. Chapman of the Directorate of High Security Prisons as being Frankland, Full Sutton, Long Lartin, Wakefield and Whitemoor. Only Wakefield, Full Sutton and Frankland have an SOTP, and they therefore are the only three which provide a proper basis for comparison. The statistics, in so far as they are of assistance, are no evidence of an inconsistent policy. There may from time to time be inconsistent application of that policy, given the very large prison population. That is not surprising, but it affords no ground for this court to intervene. This court could never be in a position of knowing the personal circumstances of all these prisoners, and indeed it would be for the claimant to make out inconsistent policies between prisons. It is not for the Prison Department to disclose all details in relation to every prisoner.
64. It is obviously difficult for any claimant to mount a challenge on the basis of inconsistent application where the facts are inevitably unknown to prisoners. As I have said, I doubt whether it could ever succeed. Individual cases will vary. Such a challenge could only succeed if it could be established that there were inconsistent policies. As it turns out, that has not been established in this case.

REJECTION OF THE VIEWS OF THE OMBUDSMAN

65. On 2nd October 1990 Potter wrote to the Prison Ombudsman to complain as to his rejection of enhanced status at Frankland. The Prison Ombudsman, on 23rd May 2000, upheld his complaint. He said of the "blanket ban", as he described it, on enhanced status at Frankland for denial of an offence, at paragraph 4.7:

"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."

66. The response came from Mr. Martin Narey, the Director General of the Prison Service, on 30th June 2000. He rejected the recommendation of the Prison Ombudsman saying:

"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."

67. He went on:

"In any event, a prisoner's denial of guilt does not automatically debar him from obtaining enhanced status..."

68. It is contended by Miss Krause on behalf of Potter that this was too cursory a response and moreover the response disclosed an illogical and inflexible attitude to the points made by the Ombudsman. It is perfectly correct that it is not open to the Prison Department to refuse to follow the recommendations of the Ombudsman, absent clear and cogent reasons. But for the reasons I have given, the response of the Prison Department to the Ombudsman's recommendation was not illogical, nor was the system inflexible.
69. It was further contended on behalf of Potter that the view taken about an SOTP was illogical because there was no evidence that attending such a course assists in reducing the risk of reoffending. The evidence, in my judgment, of Miss Shingler justifies the requirement to attend such a course and properly reveals the distinction to be drawn between the offence-specific course such as the SOTP and other courses.
70. In my judgment, the Prison Department was entitled, for the reasons I have already given, to require these claimants to confront their offences before they achieve enhanced status.
71. There may be criticisms of Mr. Narey's letter in the sense that it may be an exaggeration to say that a vast majority of the prison population have not achieved enhanced status. But that, to my mind, does not undermine the core reasoning of his letter, amplified as it is by the evidence of Mr. Atherton, Director of High Security Prisons, in which, at paragraph 25 sub-paragraph ii, he deals with the flexibility of the system and points out that prisoners may achieve enhanced status where they can address material aspects of their behaviour or their previous convictions which are of a similar nature to their current conviction. Taking Mr. Narey's letter with the evidence of Mr. Atherton, there was ample justification for rejecting the Ombudsman's conclusion.

THE HUMAN RIGHTS ACT

Article 6

72. Complaint is made of infringement of article 6 by the claimant Vickers only. It is said that this claimant is an appellant and requiring him to admit guilt in order to attend an SOTP has the effect of pressurising him to admit guilt, which will fatally compromise the fairness of his appeal. The short answer to this contention is that Vickers is not an appellant. His skeleton argument reveals that an appeal has not yet been lodged. The slightly longer answer is that the link between the policy of the IEPS and the pursuit of an appeal is too remote. Even if article 6 protects the right of effective access to an appellate court (which I need not decide but which is highly questionable) the justifiable requirement to admit guilt for the purpose of confronting sexual offences of which he is guilty on an SOTP has no connection with the right of appeal of a defendant who asserts his innocence. The claimant is free to choose. He can admit his guilt, attend an SOTP and perhaps reap the benefits of the IEPS. Alternatively, provided he is within the appropriate time limits or is permitted to appeal out of time, he may pursue his appeal.
73. For the reasons I have already advanced, there is every justification for linking a system of privileges to a system of sentence planning, which must operate on the basis that a prisoner is guilty of the offences for which he is convicted.

Article 8

74. The submission that the defendant has infringed the claimant's rights enshrined in article 8 turns out to be independent of any arguments relating to the IEPS, although it is said to derive from the IEPS. A prisoner who has achieved enhanced status is permitted three visits a month; the others, only two. The right to respect for family life enshrined in article 8 guarantees, so it is argued, as many family visits as are practically possible, consistent with the practical exigencies of managing a prison. Thus it is said that if it is practical to permit three visits per month to enhanced status prisoners, so also it must be for those on standard or lower status. If this submission is correct, it must apply to all prisoners and not just to those who deny their sexual offences.
75. It is true that Article 8 does have application to prisons. The fact of imprisonment justifies restriction on access to the family (see Boyle v. United Kingdom [1988] 10 EHRR 425, at paragraphs 68 to 74). But it is not correct to assert that practical considerations afford the only justification for restriction of visits. The very fact of conviction and imprisonment, designed in part for punishment, provides justification for restriction of access to the family as a significant aspect of punishment. In R. v. Secretary of State for the Home Department on the application of Mellor [2001] EWCA CIV 472533), Lord Phillips M.R. said (paragraph 39, page 545) of the European Court of Human Rights jurisprudence that the interference with the right to respect for family life contended for in that case (namely the refusal to permit a prisoner to found a family by artificial insemination) was a restriction ordinarily justifiable under the provisions of article 8(2). He continued:

"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..."

76. He approved of the following submission of counsel for the Secretary of State (paragraph 41, page 546):

"...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..."

77. Further, the IEPS acts as a means for encouraging the objectives of imprisonment by a system of rewards which mitigate the effects of punishment. It is therefore justifiable to increase access to the family as a reward and reduce such access as a penalty. No infringement of article 8 has been demonstrated.

Article 14

78. This article has no independent application. The claimants must bring themselves within the ambit of other substantive provisions of the Convention but need not show a breach of those provisions. The rule against discrimination means that like cases must be treated alike and unlike cases treated differently. Article 8 is engaged in this case, but there is no respect in which it can said of the claimants that their rights against discrimination have been infringed in the exercise of their rights under article 8. Those who deny a sexual offence and cannot therefore attend an SOTP are not comparable to those who may attend other courses and thereby achieve enhanced status despite their denial of some other offence for the reasons I have already advanced. A prisoner cannot confront a sexual offence unless he admits guilt; the same may not be true in relation to other offences.
79. For all these reasons I reject all these applications, save in respect of Vickers in relation to the limited period when he should have been entitled to retain enhanced status. I shall listen to any submission as to the appropriate leave for him in that limited respect.

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.