QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF DENIS ROBERTS||(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)
MR S KOVATS (instructed by TREASURY SOLICITOR) appeared on behalf of the DEFENDANT
Crown Copyright ©
Friday, 12th March 2004
The categorisation of prisoners
Prisoners whose escape would be highly dangerous to the public or the police or the security of the state... and for whom the aim must be to make escape impossible.
Prisoners for whom the very highest conditions of security are not necessary, but for whom escape must be made very difficult."
"Every prisoner must be placed in the lowest security category consistent with the needs of security and control."
"... my judgment is that, the policy of making escape as near impossible as can be for prisoners who form the small group in which this claimant is found is not itself unlawful at least insofar as it excludes the exercise of discretion. This is on the basis that the aim of the policy is such as to preclude discretion at the stage when consideration is given to its formation. On the other hand, it is not a necessary incident of that policy that no consideration, as a matter of policy... is given to the individual escape potential of prisoners within that group. The objective (aim) may be capable of being met with a lower categorisation in which event there is plainly scope, and I would hold duty, for the exercise of discretion."
Accordingly the risk of escape cannot be an immaterial factor when considering whether category A prisoners should be re-categorised.
"In deciding whether Category A is necessary, consideration may also need to be given to whether the stated aim of making escape impossible can be achieved for a particular prisoner in lower conditions of security, and that prisoner categorised accordingly. However, this will only arise in highly exceptional circumstances since escape potential will not normally affect this issue of categorisation as it is rarely possible to foresee all the circumstances in which an escape may occur."
The procedure for review
The procedures in this case
"... the Review Team took the view that satisfactory custodial behaviour within the controlled environment of a high security prison could not by itself be conclusive in determining your level of dangerousness, and that other factors should be taken into account."
"It took the view that your participation in the R & R programme could not therefore by itself provide evidence of a reduction in your risk of re-offending in a similar way."
"... it noted you had yet to address a number of issues relating to your offending behaviour, including your capacity for extreme physical and sexual violence, and your management of anger and emotions.
"The Review Team accepted that your denial of guilt of the present offences and lack of participation in offence-related work should not by themselves be a bar to your downgrading. However, the Review Team had to proceed on the basis that you had been lawfully convicted of the present offences. It also took the view that your lack of participation in offence-related work did not assist in the determination of your level of risk."
The claimant's submissions
"Convicted prisoners who persistently deny commission of the offence or offences of which they have been convicted present the Parole Board with potentially very difficult decisions. Such prisoners will probably not express contrition or remorse or sympathy for any victim. They will probably not engage in programmes designed to address the causes of their offending behaviour. Since they do not admit having offended they will only undertake not to do in the future what they do not accept having done in the past. Where there is no admission of guilt, it may be feared that a prisoner will lack any motivation to obey the law in future. Even in such cases, however, the task of the Parole Board is the same as in any other case: to assess the risk that the particular prisoner if released on parole, will offend again. In making this assessment the Parole Board must assume the correctness of any conviction. It can give no credence to the prisoner's denial. Such denial will always be a factor and may be a very significant factor in the Board's assessment of risk, but it will only be one factor and must be considered in the light of all other relevant factors. In almost any case the Board would be quite wrong to treat the prisoner's denial as irrelevant, but also quite wrong to treat a prisoner's denial as necessarily conclusive against the grant of parole."
"(1) The Parole Board must assume the prisoner's guilt of the offence or offences of which he has been convicted.
"(2) The Board's first duty is to assess the risk to the public that the prisoner might commit further offences if he is paroled.
"(3) It is therefore unlawful for the Board to deny a recommendation for parole on the ground only that the prisoner continues to deny his guilt.
"(4) That in some cases, particularly cases of serious persistent violent or sexual crime, a continued denial of guilt will almost inevitably mean that the risk posed by the prisoner to the public or a section of the public if he is paroled either remains high or, at least, cannot be objectively assessed. In such cases the Board is entitled (perhaps obliged) to deny a recommendation."
The second ground
The third ground
"23 As a matter of jurisdiction, there is in theory no legal restriction to prevent the panel from exercising its functions under section 28 in relation to a Category A prisoner, and directing his immediate release. The reality is different. The panel's judgment is bound to be better informed if the prisoner has been progressively recategorised, and his response to decreasingly stringent conditions of detention observed and reported. Moreover, under section 32(6) the Criminal Justice Act 1991, the panel is subjected to a statutory obligation to take account of any relevant directions issued to it by the Secretary of state while discharging its statutory functions. Paragraph 1 of the Directions to the Parole Board under Section 32(6) of the Criminal Justice Act 1991 - Transfer of Life Sentence Prisoners to Open Conditions in Appendix 8 of the Parole Board Directions and Training Guidance states:
'A period in open conditions is essential for most life sentence prisoners. It allows the testing of areas of concern in conditions which are nearer to those in the community than can be found in closed prisons... open conditions require them to take more responsibility for their actions.'
"In the Prison Service Lifer Manual (1999) Order No 4700, paragraph 4.10 identifies the purpose of Category D categorisation in the context of the progress of a life sentence prisoner towards release as:
'To: test lifers in more challenging conditions before being considered for transfer to a pre-release employment scheme... or resettlement prison prior to release [and to] provide facilities for supervision [of] outside activities and temporary release in preparation for final release on licence.'
"24 These directions reflect practical realities. We are not surprised to be told that, with the exception of the release of three prisoners under the 'Peace Process' in Northern Ireland, no Category A prisoner serving a sentence of life imprisonment has been released. Certainly, as far as the panel is concerned, the conclusion of the categorisation committee or review team inevitably has a direct and marked impact on its decision."
The fourth ground
"The Review Team accepts it has a duty to consider whether there are any exceptional circumstances in a highly dangerous prisoner's case that would allow it to achieve the aim of making escape impossible in conditions of lower security. However, the Review Team is satisfied there are no exceptional circumstances in Mr Roberts's case that would warrant such a consideration."