QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF PALMER||(CLAIMANT)|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MISS J RICHARDS (instructed by The Treasury Solicitor) appeared on behalf of the DEFENDANT
Crown Copyright ©
"Further to our conversation relating to your transfer and the matter of the outstanding compensation order for £2.3 million, I have taken further advice and understand that the matter is due to be listed to be heard in the near future. At the time of considering your re-categorisation I was not aware of the appeal hearing and a further risk assessment has concluded that it would certainly not be appropriate or in the public interest to transfer you to an open establishment until the conclusion of this matter.
"I regret to inform you that we will not be considering your transfer to open conditions until this issue has been concluded and all areas of risks have been addressed."
Then there is a note in handwriting on the letter, which reads as follows:
"The advice I am given is that compensation orders must be treated in the manner as confiscation orders ... "
Presumably that should read "in the same manner as confiscation orders":
"... as they can result in a default sentence if not settled. With an order in excess of £2 million there is no way that you would be accepted for open conditions."
"I regret to inform you that it is highly unlikely that you will be transferred to an open establishment at any stage during this sentence.
"The risk assessment process has revealed that within the past few weeks a website has been launched by a firm of solicitors who will be taking legal action to attempt to secure considerable compensation from you. Although this may be a civil action, the burden of proof required is lower than in a criminal court and it cannot be discounted that you could be faced with a considerable compensation order. Any such civil action would undoubtedly attract a significant amount of press and public interest given your notoriety as evidenced by the press coverage of your previous court appearances.
"Although on the face of it you would constitute minimal risk to the public it would be negligent on my part to place any prisoner facing such legal action in such a vulnerable position in open conditions. As any such legal action would attract an enormous amount of press interest it is not in the interests of the public, the Prison Service, or the stability of any open prison for you to be placed in open conditions. Any such press coverage would attract criticism of the Prison Service.
"Following consultation with the Prison Service Head of Security, it has been agreed that it is not appropriate for you to be transferred to an open prison and you will remain in closed conditions for the foreseeable future."
"Appeal against £2.3 million compensation order turned down by Court of Appeal on 27.1.03."
That should be "04", and in fact the amount was not 2.3 million but 2.03 million, perhaps a not terribly important mistake.
"Civil action being progressed with possible compensation order in excess of £80 million. Palmer appears to have access to unlimited financial resources and many criminal associates. Clearly has motivation and means to secure an escape at this stage. He has also applied for a position in garden, giving him access to the perimeter."
That is dated 28th January, although it seems that it was not given to Mr Palmer immediately. It was produced in these proceedings because it was sent to Mr Palmer's solicitors by the Treasury Solicitor on 2nd March 2004.
" ... at some stage in the decision-making process, the prisoner must have an opportunity, so to speak, to plead his case. But so much is common ground. The real question here is how big a right should that be, and when during the HDC decision-making processes ought it to bite. The Secretary of State, for his part, accepts that the prisoner is entitled to be informed of matters which may potentially be held against him, and to see relevant documents and make representations; but, he says, only at the stage of a complaint/appeal process to the governor. The revised PSO 6700, I note, appears on the face of it to give rights which are more extensive, at least as regards the supply of documentation."
Laws LJ then goes on to consider observations of Lord Mustill in Doody and of Lord Woolf in a case called Ex Parte McAvoy, and at paragraph 39 he says this:
"In my judgment, in the present case, the learned judge has gone too far in holding that all the relevant documentation must be disclosed at the assessment stage. All the more so if, with respect, he meant that that should happen in every case. The principle is that the affected prisoner must know enough about the case against him to respond to it. The gist of the documents will often be enough. But I would go further. In my judgment, the right of appeal, as it has been called, to the governor here is integral to the administrative process of arriving at HDC decisions. If at that second stage the case against the prisoner is (a) made known to him and the gist of any relevant documents explained and (b) the actual documents are provided if requested and (c) he is of course allowed to make representations, then, as I see the matter, fairness is satisfied.
"Mr Gledhill submitted that the prisoner should have the right to be informed of matters held against him and to make representations after the first stage of the decision-making and before the delivery of HDC(6). But as I see it, the process which follows when the prisoner complains or appeals to the governor is wholly in the nature of a de novo decision-making process or indeed a fresh first instance decision. That, in my judgment, is where the prisoner's procedural rights of fairness arise. It is of course essential that the prisoner be told of his right to appeal. The amended form HDC(6) which I have already read makes that clear. It also makes clear the prisoner's right to see disclosable documents upon request."
"I would wish to emphasise, as my Lord has, that this case relates, and relates only, to prisoners serving sentences of discretionary life imprisonment who have served the tariff part of their sentence in full. These prisoners are in a special position because, as has to my mind been demonstrated, a regression from Category C to Category B will very probably have a material effect on the prisoner's eventual release date. That is not to say that questions of fairness will not arise with decisions for recategorisation of prisoners serving determinate sentences; only that their circumstances are materially different in the way that I have stated."
The Duggan case makes it clear that, in relation to category A prisoners, again there may be wider rights to have representations heard.
"Categorisation and allocation of prisoners is a critical task. Effectively assigning prisoners to the correct security category and allocating them to an appropriate prison helps to ensure that they do not escape or abscond or threaten the control of establishments. It also means that prisoners are not held in conditions of security higher than are necessary."
Then the categories themselves are set out in chapter 1, 1.1.1. Category D is:
"Prisoners who can reasonably be trusted in open conditions."
"Prisoners who cannot be trusted in open conditions, but who do not have the resources and will to make a determined escape attempt."
"Prisoners for whom the very highest conditions of security are not necessary, but for whom escape must be made very difficult."
"Prisoners must be categorised objectively according to the likelihood that they will seek to escape and the risk that they would pose should they do so. In the majority of cases, consideration of these two factors alone will be sufficient to determine the prisoner's security category. However, a small number of prisoners while presenting little risk of escape or risk to the public, and who would ordinarily be assigned to a low security category will, because of their custodial behaviour, require a higher category so that they may be sent to a prison with levels of supervision commensurate with the risk they pose to control. The categorisation Forms therefore permit consideration of control to influence the final security category. The security category must take account of the above considerations alone. Separate instructions in the Security Manual describe the criteria against which eligibility for Category A must be considered."
" ... the matters which are relevant to a recategorisation are the same as those for an initial categorisation."
"The aim of recategorisation is to use this information to establish whether there has been any clear change in the risk the prisoner poses."
The paragraph goes on:
"More specifically, staff must answer two important questions: (1), is the prisoner more or less of a risk to the public than when he was first categorised; and (2), is he now more or less likely to escape or abscond."
"Rather than wait for the prison to secure his transfer, as would ordinarily be the case, the claimant's solicitors attempted to bypass the system by corresponding directly with Springhill to arrange a transfer. The exceptional degree of pressure exerted on the claimant's behalf gave me cause for concern and consequently I initiated a further risk assessment to assess the claimant's suitability for open conditions. As a result of this review, I decided the claimant should be recategorised as category C."
"I continued to have concerns, following the advice I had received from police advisers, about the prospect of the claimant facing a civil action from the victims of his offences, with a possible compensation order in the region of £80 million. It was felt that this in itself would provide the motivation to escape, and any individual with access to the financial resources and criminal associates that the claimant had certainly had the means to secure an escape. Quite simply, there was just too much uncertainty surrounding the claimant's financial dealings and legal position to satisfy us that he did not present a serious risk of escape. In addition, my concerns were increased by the fact that the claimant had requested a change of employment from a comfortable job in the sign-making workshop to the gardens party, which would give him access to the perimeter fence. In view of my concerns, I took the decision on 28th January 2004 to recategorise the grade upwards to category B."