England and Wales High Court (Administrative Court) Decisions

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

		CO/5343/2003 Royal Courts of Justice Strand London WC2
		10 March 2004

1. MR JUSTICE COLLINS: The claimant in this case was a general medical practitioner. On 10th July 2000 he was convicted on nine counts of indecent assault concerning five young male patients whom he had been treating between 1979 and 1996. He was sentenced following conviction to a total of eight years' imprisonment (that sentence indicates the seriousness of the offences of which he had been convicted). He appealed against his conviction. On 20th May 2002 his appeal was dismissed. He renewed an application for leave to appeal against sentence and that was also refused.
2. The offences involve the alleged treatment of these young people; that supposed treatment involved some sort of interference with their penises and a requirement, in a number of cases, that they masturbate themselves in order, it was said, to produce sperm so that it could be tested. These were, as I say, clearly serious offences.
3. The claimant is challenging in this claim a refusal by the Prison Service to grant him enhanced status. That refusal is based essentially upon his denial of guilt, which has resulted in his failure to attend a sex offenders treatment programme ("SOTP"). Those programmes are designed to enable sex offenders to face up to their offending behaviour, and so to reduce the risk of any re-offending at the conclusion of their sentences.
4. The procedure relating to enhanced status is a matter which is common to all prisons. It stems from a document which is described as "National Framework Incentives and Earned Privileges". It directs that all establishments must work within the framework of that particular directive. The national aims are described in 1.3.1 as follows:

"The aims of the national framework are:

. to encourage responsible behaviour by prisoners;

. to encourage hard work and other constructive activity by prisoners;

. To encourage sentenced to prisoners to progress through the prison system; and.

. to create a more disciplined, better controlled and safer environment for prisoners and staff by:

Ensuring that privileges generally are earned by prisoners through good behaviour and performance and are removable if prisoners fail to maintain acceptable standards;

1.3.2 The last aim, if achieved, will create the climate in which the other aims are much more likely to follow. However the IEP framework is not designed to be a stand alone policy. Some of these aims are furthered by other policies (eg anti-bullying, training, work activity, sentence planning). Together they contribute to the way the Service meets its Aims and Objectives."

Later in the same document at paragraph 1.9.1 there is a reference to "sentence planning compacts and the personal officer scheme". It is indicated that sentence planning must take place irrespective of the level of privileges or regime in which a prisoner is placed. For those on the basic level, it must include targets to help them progress off the basic level. There are a range of activities -- including education, training, employment and offending behaviour programmes -- set to meet sentence planning objectives which must not be treated as privileges. It is said:

"Thus a prisoner who participates in and complies with his sentence planning and any targets set should reasonably expect to advance to, or retain, higher levels of privilege. Conversely, someone failing to cooperate may reasonably be downgraded in accordance with local criteria."

5. It follows from all that, that it will ordinarily be a requirement that a prisoner complies with sentence planning in order to achieve the privileges which include the enhanced status. Each prison has its own compact which the prisoner is asked to sign when he enters the particular establishment, but if he refuses to sign nonetheless the approach which the compact requires is adopted.
6. The claimant was at Wakefield Prison before being transferred to Risley. He had failed to achieve the enhanced level whilst at Wakefield because he had failed to attend a sex offenders treatment programme, the reason for that being because he was in denial. So we find that, as he progressed, there are the necessary decisions on the level which was appropriate, which was and remain standard.
7. The first in point of time of those decisions which are before me is one of 8th November 2001, which is a report of a Sentence Planning Board. The Boad indicated that although he had maintained progress in prison, the main outstanding area of work was the sex offender treatment programme. Completion of that would address the major risk areas indicated by his convictions. It was said:

"The reports were reviewed and it was agreed that he should remain on the standard level. To achieve enhanced status it would be necessary for him to comply fully with the incentive plan."

The targets for the following 12 months were for him to remain at Wakefield and to complete the sex offender treatment programme.

8. It was subsequently noted, following the failure of his appeal, that he had admitted the offence he was convicted of against one person, however he still disputed the other evidence against him. In fact, he admitted an assault upon one of the victims but he denied, and continued to deny, that that, or indeed any other conduct, was of a sexual nature.
9. The next report is dated October 2002. It was then said that he had indicated a willingness to undertake the sex offender treatment programme, but he had yet to complete it. It was said that he had only recently indicated a willingness to undertake the programme, but his behaviour within the prison, combined with the nature of his offence, led the Board to believe that he could appropriately be managed in a category C prison. Then it said:

"The reports were reviewed and it was agreed that he would remain on the standard level. To achieve the enhanced level he needs to improve his wing score and accept full responsibility for his offending. In addition, he must fully comply with his sentence plan."

The targets for the next 12 months were to move to an appropriate category C prison and to complete the sex offender treatment programme.

10. He moved to Risley. On his arrival there he signed the relevant compact, which dealt with incentives and earned privileges. That contained the various matters which were required to enable a prisoner to qualify for enhanced level. These are as follows:

". You must demonstrate that you have had no written warnings in the preceding three months.

. Have had no positive MDTs in the preceding six months.

. Are currently not on closed visits.

. Have had no guilty adjudications in the preceding three months.

. Have consistently attended work where appropriate (unless retired or classified unfit for work or where no work is available) and have worked to a satisfactory standard as specified by the work supervisor.

. Have been on Standard Level for regime for at least three months.

. Are willing to co-operate with Voluntary Testing Programme.

. Fully meet the requirements of Standard Level Regime.

. Must fully comply with the requirements of Sentence planning."

He met all of those requirements except for the last one when it came to his application for consideration of enhanced status and the decision which is under attack in this claim.

11. There was still outstanding the sex offenders treatment programme requirement. The claimant applied to be on the sex offenders treatment programme. Initially the decision was taken that he could be and should be assessed for that programme. However, that was varied because it was appreciated that he was denying any sexual element to the offences, and thus he was regarded as someone who was refusing assessment and treatment.
12. The original acceptance of assessment was on the basis that it was understood or believed that he was partially admitting his offending. It was not initially, as it seems, appreciated that that partial admission did not extend to an admission of sexual misconduct of any sort.
13. He appealed against the decision that he should not go on to the enhanced level. The decision of the governor, dated 8th May 2003, was that he should remain on standard level. The reasons given by the governor were as follows:

"I have considered your appeal and the information contained in your Sentence Plan. You were convicted of a serious sexual offence, and SOTP was set at a target at Sentence Planning. You have made yourself ineligible to comply with this target through the denial of your offence, therefore it is through your own actions that you are not compliant in this case. Enhanced level IEP is not suitable."

14. It is perfectly clear from that reasoning that the failure to attend an SOTP was the only reason why he was not being promoted to the enhanced level. I should add that, notwithstanding the dismissal of his appeal in May 2002, he has since applied to the Criminal Cases Review Commission in relation to his convictions, as I understand it, on the ground that there is fresh evidence available which should cast doubt upon the propriety of the convictions. I do not have, I think, any direct evidence as to when that application was made, but it had been made before the decision which is under challenge. He has not yet received a decision from the Commission, so of course there has been no referral to the Court of Appeal.
15. The relevance of that is said to relate to a policy of the Prison Service that a prisoner who is on an enhanced level should not have that reduced or removed while he is an appellant. It may be, but it is difficult to be sure about this because I have no evidence about it and no statistics before me, that there are some prisoners who despite denial are on enhanced status, in respect of whom denial might otherwise have been a bar to enhanced status. An appeal against conviction would normally indicate a denial of guilt of the offences of which the prisoner had been convicted, but it was apparently recognised that it would not be fair to remove the enhanced status merely because an appeal was being pursued, and that, as I understand it, was the basis of the policy.
16. Again, I say, "as I understand it", because I have no direct evidence about the matters, save that in a statement by Mr Norbury, who is the governor of the prison, which has been filed on behalf of the defendant, it is said in paragraph 14:

"I am aware that some confusion appears to have arisen in the correspondence between the Claimant's representatives and Wing Governor Jarvis concerning the effect on the IEPS of a prisoner's appeal to the Court of Appeal. It is correct that if a prisoner has been granted permission to appeal to the Court of Appeal (Criminal Division) he is entitled to remain on enhanced status if that is the level he has already achieved. However, if a prisoner's status under the IEPS is unaffected by an application to the Criminal Cases Review Commission, until such point as the matter is referred to the Court of Appeal."

That, no doubt, is because the referral by the CCRC to the Court of Appeal is to be treated as an appeal. It certainly suggests that the policy relates not to applications but only to appeals. However, it seems to me that the only conceivable relevance of the policy in the circumstances of this case is, as Mr Blake puts it, that it would be unfair to penalise someone who is either an appellant or, indeed, seeking leave to appeal if otherwise he ought to be eligible for enhanced level. The fact that he is appealing is indicative of the reasonableness of his denial. That, as I understand it, is essentially the way in which it is put.

17. What Mr Blake contends is that the reasoning in the refusal by Wing Governor Jarvis is defective inasmuch as it appears merely to identify the failure to attend the SOTP and does not go on to put in the balance the other matters which would point in favour of enhanced status. Indeed, as Mr Blake put it, he scored 8 out of 9 of the matters which he had to fulfil.
18. As it seems to me, the reasoning is perfectly valid. The claimant knows full well why he has not been granted enhanced level. The real issue is whether that reasoning, that is to say the reliance upon the failure to attend the SOTP, should properly be regarded as a bar to enhance status.
19. Mr Blake prays in aid what he describes as the Oyston principle, that is derived from the decision of the Court of Appeal in R v The Parole Board ex parte Oyston (QBCOF 1999/1107/C, BAILII: [2000] EWCA Crim 3552). In that case the Parole Board, which had of course to assess risk, when considering whether parole was appropriate, had regarded Mr Oyston's continued denial as a matter which precluded them from granting parole. The court pointed out that there was a considerable body of evidence which indicated that despite his denial, it might well be that he could be regarded as being at a very low risk of re-offending. The Board was wrong to treat denial as itself a bar. Of course, it was a matter to which they were entitled to attach weight, and in certain circumstances no doubt considerable weight. But it was not a matter which by itself should lead to a refusal of parole. The test in that case that the Board had to consider was, as I say, risk. Of course that issue is not material in the circumstances of this case, where one is considering whether a prisoner is entitled to an enhanced status.
20. The difficulty in Mr Blake's path lies in a decision of this court in The Queen on the application of Potter and Others v Secretary of State for the Home Department [2001] EWHC [Admin] 1041, a decision of Moses J. That involved four sex offenders (or worse) who were in denial and, therefore, were not eligible to attend the sex offenders treatment programme and where enhanced level had been removed from some of them in consequence. The challenge was to the failure to allow them to maintain the enhanced level.
21. There was before the court in that case rather more evidence than is before me. One of the points that was taken in that case was a suggestion of inconsistency, in that there were some sex offenders in denial who had been granted enhanced level. I say there was no more evidence before Moses J than before me, although there was precious little before him. However, I have none. But at paragraphs 60 to 64 he deals with this argument and refers to a statement which had been produced by a Mr Chapman. That statement apparently produced statistics showing that those who denied other offences were, from time to time, granted enhanced status. Moses J says:

"But the fundamental distinction is between those who can address their offences by attending courses despite denial and those who cannot.

An SOTP requires an admission of guilt for the reasons advanced by Miss Shingler [a witness whose statement was before him]. 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."

He then goes on to deal with alleged inconsistencies between various prisons. He went to say that he did not believe that there was anything in the inconsistency argument, and that point was dealt with by the Court of Appeal in refusing leave to appeal. The court said that it was not easy to assess the point because there was no evidence in detail about other prisoners but that it did not show irrationality or unfairness. What it suggested was that the Prison Service had been giving careful attention to individual cases and the individual circumstances of particular prisons.

22. But so far as the issue before me is concerned, Moses J at paragraph 57 said:

"Nor is there any basis for criticising the weight attached to the single requirement to attend an SOTP ... 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."

Then in paragraph 59, he said:

"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."

23. Mr Blake seeks to distinguish those observations because there Moses J had referred to the weight to be attached to the single requirement, and that was in the context of a clear consideration by the decision-maker of the other factors which perhaps pointed in favour of enhanced status as against the single factor that pointed against. He submits that in this case there is no such balancing exercise and certainly nothing in the reasons given supports the contention that such an exercise has been carried out.
24. Miss Callaghan points out that in his reasoning Mr Jarvis specifically refers to the sentence plan. He clearly had before him (and, indeed, there is no issue but that he would have had before him) the assessments of the claimant, all of which were good, and indeed there was a recommendation that notwithstanding his failure to attend an SOTP he should, because of his good behaviour, be granted enhanced status.
25. It is obvious that what Mr Jarvis did was to regard his failure to achieve the SOTP, which was a necessary part of his sentence plan, as fatal to his application. It seems to me that that is exactly what Moses J was saying. He uses the word "weight", but in context it is plain that what he means is that the prison authorities in the cases before him were entitled to regard the failure to attend an SOTP as fatal to the claims. As Moses J indicates, there is a perfectly good reason for that. Indeed, I accept the submissions by Miss Callaghan that all the nine requirements must be fulfilled in general to entitle a prisoner to an enhanced status. There is a degree of flexibility inasmuch as a partial admission may in an appropriate case lead to a decision that a treatment programme can be attended and, therefore, an enhanced status may be granted.
26. It is equally clear from the evidence that was before the court in the cases before Moses J, that there are circumstances in which even denials may be overridden to enable an enhanced status to be granted. That will depend upon the individual circumstances of a particular case. But I have no doubt in the circumstances of this case that Mr Jarvis was entitled to regard the failure to attend the course as fatal to this application.
27. The result must be that this claim is refused.
28. MR BLAKE: My Lord, thank you. My Lord, my client is legally funded, I would ask for detailed assessment?
29. MR JUSTICE COLLINS: Certainly.