England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		16th May 2008

1. MR JUSTICE UNDERHILL: This is a renewed application for permission to apply for judicial review. The claimant has been represented by Ms Flo Krause; the first defendant, the Parole Board, by Mr Rory Dunlop; and the second defendant, the Secretary of State for Justice, by Ms Susan Lambert. I am grateful to all of them for their helpful and cogent submissions.
2. The claimant is a serving prisoner who, on 1st March 1978, when he was aged 23 or 24, was convicted of the rape and murder of his seven year old niece. He was sentenced to life imprisonment. The judge initially recommended a minimum period to be served of 12 years but the Home Secretary eventually set a period of 20 years. The claimant is aggrieved at the way in which the Home Secretary departed so substantially from the recommendation of the trial judge, which would of course not have been possible under the modern practice, but it is the basis on which all concerned acted at the time; and his tariff accordingly expired in 1997. The claimant has not been released and remains a category B prisoner in, at present, HMP Frankland.
3. These proceedings were commenced on 6th February 2007, seeking judicial review of a decision of the Parole Board dated 7th December 2006, not to direct the claimant's release or recommend his transfer to open conditions. At that stage the claimant was representing himself, and extensive grounds were drafted by him. On 22nd May 2007, Mr James Goudie QC, sitting as a Deputy High Court Judge, refused permission.
4. The claimant renewed his application. At an oral hearing on 21st September 2007, Walker J adjourned that renewal application in order to allow the claimant to amend his grounds. Solicitors and counsel were then instructed and amended grounds were prepared accordingly. In the light of the expanded scope of those grounds, permission was sought and granted to add the Secretary of State for Justice as the second defendant. I mean no disrespect to Mr Krause, whose submissions before me I found most helpful, when I say that, as she was indeed good enough to acknowledge, the amended grounds were somewhat diffuse and their precise relationship with the grounds originally pleaded by the claimant somewhat confusing. However, on 4th March 2008, Ms Krause prepared a short document headed "Clarification of the claimant's grounds", which formed the basis of her oral submissions before me.
5. There has been a dispute in correspondence between the parties' solicitors as to whether the amended grounds, as so clarified, enable the claimant to challenge his continuing categorisation in Category B. It was, however, agreed at the commencement of the hearing before me that his grounds should be treated as including a challenge to a decision of his lifer manager, Mr Ayers, recorded in a report dated 6th March 2008 following a meeting of the Sentencing Planning Review Board the previous month, not to move him to Category C.
6. Ms Krause has made it clear that she is not pursuing two other peripheral complaints initially made by the claimant, one relating to the removal of his typewriter, which has since been returned, and the other to the alleged opening of his privileged correspondence. As far as the latter point is concerned, she made it clear that she had no instructions to withdraw that part of the case, but she did not wish to make any submissions in relation to it, not least because she acknowledged that it was for practical purposes almost impossible to establish whether any opening of the claimant's privilege correspondence that may have occurred was intentional or by oversight. All I need say is that I have no doubt that the authorities, having been alerted to the allegations made, will take care to see that proper procedures continue to be followed in this regard.
7. I am accordingly concerned with two decisions quite widely spaced in time -- first, the decision of the Parole Board in December 2006 and, secondly, the decision of Mr Ayers in March 2008 -- but both share a common background. Decisions both as to release and as to categorisation depend on an assessment of the risk posed by the prisoner. It is apparent that the principal, the claimant would say the only, reason why the Board in the one case and Mr Ayers in the other have decided that the claimant has not demonstrated a sufficient reduction in the risk which he poses to justify his release or recategorisation, is that he has not undertaken the extended Sex Offender Training Programme. The relevant history in this regard can be summarised as follows.
8. Following the expiry of the claimant's tariff, Parole Board reviews were held in January 1998 and July 2000. For reasons into which I need not go, but which seem perfectly cogent and have not been criticised before me, he was not considered ready for release or for transfer to open conditions. He had in 1999 undertaken the Sex Offender Treatment Programme, which is a distinct and considerably less demanding programme than the Extended Sex Offender Training Programme to which I have already referred, at Wakefield Prison. He says that he found it hard going and traumatic but it was recorded that he had made considerable progress as a result of undertaking the programme. It was nevertheless considered necessary that he should proceed to the extended programme.
9. For that purpose, he was transferred to Brixton in June 2001, but within a short period of commencing the programme he withdrew from it. He has given somewhat different accounts at different times of his reasons for doing so, but I am not sure that they are in truth irreconcilable. He says that he found the experience of being required to go over the circumstances of his offence in detail extremely painful and distressing, and he believed that it was of no real value in circumstances where he had fully admitted his guilt shortly after his conviction, over 20 years previously, and had been over the circumstances in detail as part of the Sex Offender Training Programme at Wakefield. He was offered no psychological or other professional support with the difficulties which he experienced in the initial stages of the programme at Brixton. He had in recent years developed a strong Christian faith. He prayed and came to the conclusion that further participation in the course would be unhelpful and wrong because it focused on the past when his faith told him that all that mattered was that he should focus on the future. (The latter point has been expressed in some reports somewhat baldly as his saying that he had been "told by God" not to continue with the programme. That is no doubt one way of putting it and may indeed be a way in which the claimant has himself put it on occasions, but it may be misleading if it suggests that the claimant was simply asserting some crude externalised or indeed delusionary instruction not to proceed.)
10. The claimant was in due course returned to Wakefield, where there was a further hearing before the Board in December 2004. He was later transferred to Frankland. Up to and including the hearing before the Board in December 2006, he maintained the position that he was not prepared in any circumstances to participate in the Extended Sex Offender Training Programme.
11. The Board's decision letter dated 7th December 2006 (the hearing itself had been on 5th December), reads, so far as material, as follows:

"4. Your progress in prison has not been smooth and your behaviour has at times been poor, but you did come to admit your offence and have expressed a great faith in God. There is a long history of conflict with the prison authorities and a reported obsession with the length of your tariff, but in 1998 you completed the ETS course and in 1999 the Core SOTP. However, in 2001 you declined to continue on the extended SOTP, for which you had been recommended to reduce your risk, because God had instructed you to deselect yourself and you have not since undertaken any offence-focused or risk reduction work.

5. You have now been in HMP Frankland for 16 months and current reports from the prison indicate that your behaviour has been good, although you have one adjudication in April 2006 for disobeying a lawful order. There is doubt as to whether this was later quashed. All the reports, including those of both the seconded and external probation officers, state that the risks of further violent and sexual offending have not been reduced, nor are likely to be, unless you complete the extended SOTP and other offence-focused work and there are no recommendations for your release or transfer to open conditions.

6. Your own written representations clearly demonstrate a strong belief in God and you have the support of your church members. You have also been supported by the mental health team, as you have presented with symptoms of chronic depression and placed yourself in segregation, and your present attitudes or complaints -- confrontation, intimidation and self harm -- are such that the external probation officer considers that if they persist there will be concerns over your mental health.

7. At the hearing, the Panel heard from the Lifer Manager and the External Probation Officer, who both confirmed their reports and repeated their conclusions that your risk remains high and will continue to do so when [and I pause to say that is clearly a slip for "until"] you participate in appropriate courses. Mr Vaicekauskas has carried out an OASys assessment, which concludes that your risk to children, the public and known adults is very high and that you would currently be subject to MAPPA level 2.

8. The Panel gave careful consideration to your evidence to the effect that you would not revisit the past as you were confident that you would not present any risk in the future. The Panel, on the evidence before it and in the dossier, are unable to share that confidence and, having listened to your entrenched attitudes, consider that it would be helpful if a future panel had the benefit of a report from a consultant forensic psychiatrist.

9. In all the circumstances, the Panel conclude that the risk factors remain unaddressed and they clearly have not been reduced to the extent that would enable there to be a direction for release or transfer to open conditions."

However, in the early part of this year the claimant has modified his position. (I say in parenthesis that there may be some question as to whether this had been adumbrated earlier. I will return to this later.)He ascertained that it would be possible to undertake the Extended Sex Offender Treatment Programme at Shepton Mallet, a lifer-only category C establishment, and he made it clear that if he were transferred there he would be prepared to undertake the programme. It appears that at the meeting of the Sentence Planning and Review Board on 9th February 2008, to which I have already referred there was support expressed for that option, though no formal recommendation of it. It would, of course, have required his recategorisation as a Category C prisoner. Mr Ayers considered the report of the Sentence Planning and Review Board in his own report of 6th March but he concluded, as I have said, that the claimant should not be recategorised, which made any transfer to Shepton Mallet impossible. Mr Ayers saw the way forward as being for the claimant, now that he would no longer had any absolute objection to participation in the extended programme, to undertake it at Frankland. It has since, however, transpired that he could also, if he wished, do so at Albany, which, although also a Category B prison, is not part of the high security estate and in which, apparently as a result conditions may be somewhat more attractive. That offer has been formally repeated in correspondence.

12. I should also note that, as referred to in the decision of the Parole Board, the claimant has for some time had the support of the mental health team at Frankland because of concerns about depression (and, it may be, some other aspects of his mental health). Mr Ayers noted that they would remain engaged and be able to offer support to the claimant during his participation in the extended programme. He had of course complained of the absence of such support during his unsuccessful attempt to undertake the programme at Brixton.
13. Ms Krause's broad submission on behalf of the claimant is that both the decision of the Board in December 2006 and Mr Ayers' decision in March 2008 are based on the proposition that the only way in which the claimant can show a reduction in risk is by undertaking the Extended Sex Offender Training Programme. She says that that in effect excludes reliance on any other sources of evidence as to the reduction in the claimant's risk and leads, in the case of the Board, to it being too slow to be, in the language of section 28(6)(b) of the Crime (Sentences) Act 1997, "satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined." She refers to this as setting the satisfaction threshold too low, though I think it might more aptly be described as setting it too high. She submits that taking that approach leads to the plainly unfair result that a man who has a conscientious and not unreasonable objection to participation in such a programme is put in a position where he can in practice never be released or even, it seems, recategorised. She submits that that leads to wholly disproportionate punishment in breach of the claimant's right under Article 5 (and indeed, she says, Article 3) of the European Convention on Human Rights.
14. Ms Krause submits that there is in fact a close analogy between the claimant's position and that of "deniers", that is to say sex offenders who deny their guilt and are accordingly treated as ineligible to participate in programmes of the kind with which we are concerned in this case. The position of deniers has been considered in a number of authorities, most recently R (ex parte Oyston) v the Parole Board (Court of Appeal, unreported, 1st March 2000, BAILII: [2000] EWCA Crim 3552), where the courts have cautioned against treating compliance with programmes of this kind as the exclusive means of assessing risk.
15. Mr Krause reinforces her basic submission by referring to evidence that the effectiveness and value of programmes of this kind is questionable. She referred me specifically to two reports published by the Home Office in 2003, by Caroline Friendship and others in support of that proposition. She also sought to rely on the decision of the Divisional Court, upheld by the Court of Appeal, in R (Brooke) v Parole Board [2007] EWHC 2036 (Admin); [2008] EWCA Civ 29. While she acknowledged that it would be futile to pursue these proceedings merely to obtain a declaration about the position of the Board equivalent to that already made by the Divisional Court in that case, she submitted that the lack of independence identified by the court in those proceedings had in the claimant's case contributed to the inappropriate reliance on flawed materials put before it by prison staff and others who were employees of the Secretary of State.
16. So far as these last two particular points are concerned, I cannot attach weight to them. The fact that there is research casting doubt, though in somewhat tentative terms, on the effectiveness of programmes such as the Extended Sex Offender Treatment Programme does not mean that it is even arguable that the authorities responsible for taking decisions about prisoners serving indeterminate terms are acting unlawfully in attaching value to them. There is, as I was shown by Mr Dunlop, extensive material suggesting, contrary to the articles by Ms Friendship, that such programmes and courses do in fact have very considerable value. The assessment of the evidence about the value of such programmes must be primarily a matter for the Prison Service and the Ministry of Justice (though also, it may be, for the Board if a properly supported challenge is made to it). This court could only intervene if it were unequivocally demonstrable by cogent objective evidence that such courses and programmes did not have any substantial value in reducing risk so that it was irrational of the authorities to place any weight on them. The material pointed to by Ms Krause did not come even close to establishing such a case. As for Brooke, the respects in which the Divisional Court and Court of Appeal held that the independence of the Parole Board was impugned have in my view no bearing on the particular criticisms which Ms Krause seeks to advance in this case.
17. Notwithstanding my rejection of those particular points, I have some sympathy with the general thrust of Mrs Krause's submission. There is obviously in principle a risk that those associated in the process by which decisions on release and categorisation are taken -- not just the Parole Board or prison governors but those on whose reports and recommendations they rely -- will slip into a mode of thinking whereby the completion of appropriate programmes or courses becomes the only touchstone of risk reduction. Such a formulaic approach must be avoided. It is wrong in principle and can cause serious unfairness to people in the claimant's position, whose tariff period has long expired but who are faced with an apparent impasse where they are unable or unwilling to complete courses of the kind in question. It is necessary for the Board and those advising it to consider all material relevant to risk and, in cases where a prisoner has declined to participate in courses which might have assisted him to demonstrate such reduction, to consider not only whether his reasons for doing so are in fact indicative of risk but also, and all the more closely, what conclusions can be drawn from the other available material. Having said that, I do not wish to be understood as casting any doubt on the great importance placed on such programmes and courses, merely to be saying that they should not be treated as in every case the only relevant factor.
18. However, all that is at a level of generality. The question for me must be whether it is arguable that the Board or Mr Ayers in the present case succumbed to the temptation which I have identified. I do not believe that it is.
19. As regards the decision of the Board, I have already set out its reasons. Ms Krause submits that those reasons demonstrate, specifically at paragraph 6, that the Board did little more than rubber-stamp the opinions of the prison staff and probation officers who themselves treated the question of the claimant's non-participation in the Extended Sex Offender Treatment Programme as determinative on the question of risk. I do not think that that submission is fair either to the staff in question or to the Board.
20. As for the staff, read as a whole, the reports in the dossier are full and balanced and, although they do indeed express the views attributed to them by the Board, they do not appear to do so on an unthinking or automatic basis but as a result of a genuine assessment of all aspects of the claimant's case. The claimant's own view that he does not need to participate in any further courses or programmes and that he has moved on, principally as a result of his Christian faith, is properly recorded and treated with respect. The stresses involved in the claimant's previous attempts to participate in the programme are acknowledged, and it is made clear that he would have support from the community psychiatric nurse and the chaplaincy if he were now to undertake the programme.
21. As for the Board itself, although its reasons are, as is not uncommonly the case, fairly brief and could perhaps with advantage have been somewhat more fully spelt out, it is clear that they do go beyond a simple acceptance of the reports received. I refer in particular to paragraph 8, which makes it clear that the Board did consider the claimant's reasons for not wishing to participate in any further courses. The request for a psychiatric assessment shows that the Board clearly wished to benefit from a further exploration of the claimant's state of mind and of his reasons for not wishing to participate in the programme. Ms Krause complains that the report contains no express reference to the healthcare or chaplaincy reports, both of which were before the Board and emphasised the extent of the change in the claimant's personality over recent years, but I do not believe that that omission can be regarded as significant. It is not incumbent on the Board to refer individually to every report which it has considered.
22. In short, I can see no arguable case that the decision of the Board was one which was not open to it on the material before it or that it failed to have regard to all relevant considerations.
23. I turn to the decision of Mr Ayers not to recategorise the claimant to Category C. I can understand the claimant's sense of disappointment about this decision but I can see no basis on which it can be said to have been irrational or unfair. There was in fact no recommendation for such recategorisation before Mr Ayers and, even if there had been, the decision in question fell to be taken by him as the Lifer Manager rather than by the Sentencing Planning and Review Board. He was in my view plainly entitled to take the view that recategorisation ought to follow the successful conclusion of the Extended Sex Offender Treatment Programme rather than precede it. There was now, contrary to the position before the Parole Board, real reason to believe that the claimant would participate in such a programme and that he would thus be enabled to progress through the system, because he had abandoned his root and branch objection to participation. It is true that the position which he was adopting was that he was only prepared to undertake the programme at Shepton Mallet, but the choice of where he should undertake it was not one that was for him to make. No cogent reasons appear to have been given as to why, if he was willing and able to undertake the programme at Shepton Mallet, he could not do so at Frankland or another Category B establishment.
24. I should finally mention one puzzle about the evidence. I have so far addressed it on the basis that it was only at the beginning of this year that the claimant expressed himself willing to undertake the Extended Sex Offender Treatment Programme, albeit only at Shepton Mallet. However, at the hearing before Walker J in September last year, the claimant, who was then representing himself, told the court that his position before the Parole Board in December 2006 had been to the same effect. There is no trace of such a statement in his written submissions to the Board or in any of the other contemporary material, which indeed appears inconsistent with that having been his position. It would frankly be surprising that, if he had expressed that position to the Board, it would not have been referred to in its written reasons. I think it most likely that the claimant was simply wrong in what he said to Walker J. Ms Krause told me that it was generally possible, on request, to obtain a note of the evidence given to the Board, but that step has not been taken in this case and we therefore have no authoritative record of his oral submissions. But I would in any event note that, if the claimant did indeed say this to the Board, it would seem to me only to reinforce my conclusion that the Board's conclusion was reasonable, since it would have undermined the claimant's position that he had a principled objection to undertaking the Extended Sex Offender Treatment Programme and suggested that he was simply seeking to set conditions agreeable to him as to the terms on which he was prepared to do so.
25. It follows that I am not prepared to give permission to apply for judicial review of either decision. I have found the case concerning, as any case must be where a life prisoner has long passed his tariff and where there appear to be procedural obstacles to his demonstrating the reduction in risk necessary to entitle him to recategorisation and ultimately to release. Such a concern remains even where, as may well be the case here, those obstacles are to a greater or lesser extent of the prisoner's own making. Nevertheless, despite those concerns, I am satisfied that he has no arguable case in law. The fact remains, both as a matter of domestic law and under the Convention, that the Board is fully entitled to refuse release, and not to recommend transfer to open conditions, unless and until it is satisfied of the statutory criterion relating to reduction of risk. I am in any event reassured by the knowledge that a further hearing of the Board is scheduled for later this summer, at which it is anticipated that the claimant will be represented by Ms Krause and the Board will also have the advantage not only, I assume, of the psychiatric report for which it asked on the last occasion, but also of the very full psychologist's report which the claimant's solicitors have recently obtained and which has been put before me. I have no doubt that the Board will give the claimant's case very careful consideration and will be mindful of the desirability, subject to the constraints within which it operates, of the claimant having the opportunity to demonstrate the reduction in risk which he asserts.
26. I will direct a transcript of that judgment be made at public expense, since Ms Krause cannot be present to hear the judgment. In her absence, are there any points which either of you are aware of which you yourselves, or you think she, having been here, would wish to draw to my attention of a factual nature?
27. MR DUNLOP: My Lord, the only thing I was going to say, it is not of a factual nature, but given that your Lordship heard detailed argument and gave a very detailed and considered judgment, for which we are extremely grateful, much more detailed and considered than in most permission decisions, we would ask for permission to rely on that decision, I believe that that is the normal course --
28. MR JUSTICE UNDERHILL: Yes, I have heard it said, though I have never quite understood what the basis of it is; but if there is going to be a transcript, I cannot see any reason in principle why you should not --
29. MR DUNLOP: I think the basis is there is a practice direction on citation of authorities which says that, generally speaking, permission decisions should not be cited as authoritative, but, if the court has heard detailed argument and the court considers that it has given useful guidance, it can specifically say so and I would submit that that is exactly what has happened here.
30. MR JUSTICE UNDERHILL: Well, I do not frankly know what the principles are. I would deprecate, not just from my natural humility, any attempt to treat this as some important judgment. It is, when all is said and done, a permission decision and I have only given a fairly detailed judgment because I felt I ought to do so in deference to the length of argument I had heard and the genuine importance of this case to the claimant. I do not regard myself as having said anything of enormous importance or significance. Insofar as I have said anything general, it may be as helpful to claimants as to defendants. But, having sounded that note of warning, I do not see any particular reason why it should be ring fenced. If you think it would be useful in other cases, I do not mind you using it.
31. MR DUNLOP: I am grateful, my Lord.