QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF HILL||Claimant|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||Defendant|
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Miss N Greaney (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
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"(1) A prisoner, whether sentenced to imprisonment or committed to prison on remand or pending trial or otherwise, may be lawfully confined in any prison.
"(2) Prisoners shall be committed to such prisons as the Secretary of State may from time to time direct; and may by direction of the Secretary of State be removed during the term of their imprisonment from the prison in which they are confined to any another prison."
"(1) Prisoners shall be classified, in accordance with any directions of the Secretary of State, having regard to their age, temperament and record and with a view to maintaining good order and facilitating training and, in the case of convicted prisoners, of furthering the purpose of their training and treatment as provided by rule 3."
"This chapter sets out the procedures and documentation for the categorisation of allocation of all adult male prisoners, other than those for whom responsibility lies with headquarters. They do not apply to either category A or life sentenced prisoners.
"The chapter describes the definitions of each security category, the principles that must underpin the categorisation of and allocation of adult male prisoners."
"Category C. Prisoners who cannot be trusted in open prisons, but who do not have the resources and will to make a determined escape attempt.
"Category D. Prisoners who can be reasonably trusted in open conditions."
"239 The Parole Board.
(1) The Parole Board is to continue to be, by that name, a body corporate and as such is...
"(b) to have the functions conferred on it by this chapter in respect of fixed-term prisoners and by chapter 2 of part 2 of the Crime (Sentences) Act 1997, in respect of life prisoners within the meaning of that chapter.
"(2) It is the duty of the Board to advise the Secretary of State with respect to any matter referred to it by him which is to do with the early release or recall of prisoners."
"1. A period in open conditions is essential for most life sentence prisoners, 'lifers'. 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. Lifers have the opportunity to take home leave from open prisons and, more generally, open conditions require them to take more responsibility for their actions.
"2. In considering whether a lifer should be transferred to open conditions, the Parole Board should balance the risks against the benefits to be gained from such a move. Such consideration is, thus, somewhat different from the judgment to be made when deciding if a lifer should be released: in those cases, the Parole Board is asked only to consider risk.
"3. The principal factors which the Parole Board should take into account when evaluating the risks of transfer against the benefits are:
"(a) whether the lifer has made sufficient progress towards tackling offending behaviour to minimise the risk and gravity of reoffending and whether the benefits suggest that a transfer to open conditions is worthwhile at that stage; and,
"(b) whether the lifer is trustworthy enough not to abscond or to commit further offences (either inside or outside the prison).
"4. Each case should be considered on its individual merits.
"5. Before recommending transfer to open conditions, the Parole Board should consider whether:
"(a) the extent to which the risk that the lifer will abscond or commit further offences while in prison is minimal;
"(b) the lifer has shown by his performance in closed conditions that he has made positive efforts to address his attitudes and behavioural problems and the extent to which significant progress has been made in doing so;
"(c) the lifer is likely to derive benefit from being able to continue to address areas of concern in an open prison and to be tested in a more realistic environment."
"It is clear to see that Mr Hill could be seen as a difficult individual. However, within sessions I have found him to engage and reflect on what had been discussed, which was excellent. In my opinion, Mr Hill needs to be directed through a route for violent or sexual offending that will give him the opportunity to challenge his thinking and to develop skills to aid him to have healthy relationships in the future."
"Mr Hill presents in an aggressive manner, which at times could be perceived as threatening. There are reports from a variety of staff, which have been the recipient of Mr Hill's attitudes and poor emotion control. This included an outside agency who came to interview Mr Hill for a job vacancy which resulted in him shouting at the individual about being exploited. Mr Hill is not ready to be in a category D establishment, where he needs to self manage."
"This combination of poor behavioural controls, coupled with an ideological unwillingness to engage meaningfully in rehabilitation and a rigid and inflexible, distrustful personality organisation seems to underpin the majority of Mr Hill's difficulties in the prison system. Unfortunately the nature of closed conditions means that all individuals with such personality tendencies may struggle, particularly in such environments. In some respects then, Mr Hill's personality development cannot be separated from the effects of the prison environment on his personality."
"Outstanding areas of risk -- none. Those problems have been dealt with. Would have had violence long before now. Interpersonal skills need work. Risk to public is low. Cannot understand sex offender route. Damaging to be enclosed for too long. Needs to be engaged with interpersonal skills where he can practise. Can interact with public and others, better relations with staff. Days out, no evidence of lack of civility to people outside prison."
"No one-to-one work in open conditions. We are resourced for group work. Work he needs, only enclosed."
"Further trial in category D warranted, as long as appropriate treatment. Successful and long term engagement in treatment, not superficial."
"Easier in Cat D. Needs experience of good guides. Long term, at least a year, potentially longer before release."
"Lifers can normally only be transferred from closed to open conditions when a positive Parole Board recommendation has been accepted by senior managers in LRRS [that is the relevant part of the department] on behalf of the Secretary of State."
"Dr Hider remained of the view that engaging with a therapeutic community was his principal recommendation but recognised that Mr Hill was not amenable to such a transfer and was of the view that Mr Hill would not benefit from group work. Despite being supportive of a move to open at the hearing, Dr Hider had recognised that location was not the principal concern from a clinical perspective (paragraph 4, addendum report) and had even considered that it may be more beneficial to engage in treatment in closed conditions so that the outcome of this treatment can be evaluated before a move to open conditions is considered."
"The principal concern relates to Mr Hill's attitude in terms of his sexuality and his interpersonal relations ... in terms of risk factors, Mr Hill has stated he wishes the majority of his friends to come from the Christian community but this would place him in a situation of secrecy relating to his sexuality, a circumstance identified by Mrs Nelmes as mirroring the precise factors that led to the index offence ... the Secretary of State therefore considers it important in relation to risk that the work identified by both Dr Hider and Mrs Nelmes needs to be taken forward, completed and tested. The risk factors that remain concern Mr Hill and his own attitude towards acknowledging his sexuality and managing this in terms of interpersonal relations. The Secretary of State accepts that work needs to be undertaken in this area, but considers that as it represents core work, central to Mr Hill's progress, that it should be conducted in an environment where there are greater facilities and more effective monitoring can take place, and as such should be completed in closed conditions prior to any consideration of a future move to open conditions."
"As to the question of risk, the Secretary of State for Justice was well aware of the Parole Board's views that the risk was no greater now and in all probability had reduced since the time when the claimant was transferred to open conditions in 2004/2005. The SSJ's view is not based on a proposition that the claimant's risk has increased. The SSJ's view is that the key areas of risk remain, which need to be addressed by core work which relates directly to his offending. It is not accepted that the rationality of the SSJ's decision depends on him being of the view that the claimant's risk has reduced since 2004 to 2005. It is relevant that the transfer to open conditions in 2005 was unsuccessful due to the claimant's behaviour towards others, which made him unmanageable in open conditions. There remains outstanding one to one psychological work to complete, relating to interpersonal relationships, the directions to the Parole Board by the transfer of life sentence prisoners to open conditions make clear that the question is not one of risk alone and a relevant factor is whether the prisoner has made significant progress in addressing his attitude and behavioural problems."
"1. Article 5(4) of the convention did not have direct application for the early release provisions such that the involvement of the Secretary of State would be impermissible, unless there was a compelling reason to depart from that basis;
"2. On a proper construction of the 1991 Act, the Secretary of State was not at liberty to delegate his functions to the Parole Board. Moreover, the Secretary of State had no legal duty to adopt a policy of never exercising his retained power under section 35(1) of the 1991 Act.
"3. Under section 35(1) of the 1991 Act, the Parole Board, having considered all the relevant material, had to make an assessment of risk to public safety. Nothing in section 35(1) precluded the Secretary of State from rejecting the assessment of the Parole Board so long as his assessment of risk was rational and not otherwise viciated by legal error."