England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		29/06/2009

Mr Justice Wyn Williams :

1. On 28 April 1989, in the Crown Court at Exeter, the Claimant was convicted of offences of murder, rape, buggery, false imprisonment and kidnapping. On the same day the Trial Judge, Drake J, imposed a sentence of life imprisonment upon the Claimant in respect of the offence of murder. It also seems probable, though there is no precise evidence to this effect before me, that the Trial Judge made a recommendation that the Claimant should serve at least 35 years in prison in respect of the conviction for murder before he became eligible for release and that in due course the Secretary of State for the Home Department accepted that recommendation and imposed a tariff of 35 years.
2. The murder victim was a young woman; she was not known to the Claimant at the time of her death. The Claimant was convicted of other offences in relation to two other young women who were unknown to him at the material time. The motivation for the offending was, apparently, sexual.
3. From the moment of his arrest to the present time the Claimant has steadfastly denied that he committed any of the offences of which he was convicted. He does, however, admit that he had committed offences prior to his convictions in April 1989 (including offences of rape and robbery). Indeed, he says (and there is no reason to doubt) that he pleaded guilty to all offences of which he was convicted prior to 28 April 1989.
4. From the beginning of his sentence the Claimant has been a category A prisoner. Since November 1998, the Claimant has been imprisoned at HMP Full Sutton. Before that, the Claimant was imprisoned at HMP Frankland.
5. For many years a scheme known as the Incentives and Earned Privileges Scheme (hereinafter referred to as "IEPS") has operated within prisons in England and Wales. The scheme is described in a written document published nationally pursuant to the Prison Rules1999 which provides a framework within which governors of individual prisons may devise their own local scheme to reflect the nature and role of the particular prison. The published national scheme specifies the following as being national aims:-

To encourage responsible behaviour by prisoners;

To encourage effort and achievement in work and other constructive activity by prisoners;

To encourage sentenced prisoners to engage in OASys and sentence planning as benefit from activities designed to reduce re-offending; and

To create a more disciplined, better controlled and safer environment for prisoners and staff.

6. The IEPS operates at 3 tiers: basic, standard and enhanced. In summary, prisoners who are at the basic tier have the least privileges, prisoners at the standard tier have more privileges and prisoners at the enhanced tier enjoy most privileges.
7. Upon his arrival at HMP Full Sutton the Claimant's status within IEPS was set as standard. Sometime after his arrival the Claimant participated in a scheme operated at the prison called "The Dispersal Inmate Assessment (DIA) Scheme." Following completion of that scheme the Claimant was awarded enhanced status. That occurred, apparently, in 2000. In December 2001 the Claimant's status was changed to standard. In his witness statement he claims that this occurred due to his refusal to be assessed for reasoning and rehabilitation courses. Since that date, as I understand it, the Claimant has remained assessed as standard within the IEPS.
8. These proceedings were commenced on 2 March 2007. In the Claim Form the Claimant specified that he was challenging "the ongoing unwillingness of HMP Full Sutton to implement IEPS in a way that is not based on punishment, this in turn does not aid re-categorisation and a progression through the system". He also alleged that his human rights under Articles 3 and 8 of the European Convention on Human Rights were being breached. The Claim Form was supported by very detailed grounds settled by Counsel.
9. The Defendant acknowledged service on 30 March 2007 and indicated that he intended to contest the claim. In his Summary Grounds of Defence he referred in particular to a decision of Moses J (as he then was) in Potter & Others v SSHD [2001] EWHC Admin 1041 which, he submitted, was indistinguishable from the claim being asserted by the Claimant.
10. On or about 24 April 2007 the Claimant filed a Response to the Defendant's Summary Grounds. This document was settled by Counsel and it sought to distinguish the decision in Potter.
11. On 21 May 2007 Sullivan J (as he then was) refused permission to apply for judicial review on consideration of the papers. He relied heavily on the decision in Potter in his reasons for refusal but it seems clear that he had not been provided with the Claimant's response to the Summary Grounds of Defence.
12. A renewed application for permission to apply for judicial review was considered at an oral hearing by Underhill J on 30 October 2007. Both the Claimant and Defendant were represented by Counsel and Underhill J granted permission.
13. Following the grant of permission the Treasury Solicitor, on behalf of the Defendant, wrote to the Claimant's solicitors on 26 November 2007. In the letter, the Claimant's solicitors were informed that the Defendant was prepared to reconsider the Claimant's IEPS level in the light of any representations that he might wish to make. On that basis the Claimant was invited to consider withdrawing the application for judicial review. There followed correspondence between solicitors the effect of which I need not summarise or set out in detail.
14. On 13 February 2008 the Claimant participated in a sentence planning review. The result of that review, so far as is relevant to these proceedings, was that targets were set for the Claimant to the effect that he should apply for and, if successful in his applications, participate in courses known as Enhanced Thinking Skills (ETS) and Sexual Offenders Treatment Programme (SOTP).
15. The ETS is a short cognitive skills programme which addresses the way in which offenders think. Participants are not required to describe their offences or admit guilt. ETS addresses thinking and behaviour associated with offending generally. The course aims to enable participants to be less impulsive, more flexible and less rigid in their thinking. It develops skills for reasoning, perspective thinking, self-reflection, and inter-personal problem solving.
16. There are a number of SOTPs. The Core SOTP is targeted at male medium and high risk sex offenders. The aim of the programme is firstly to help offenders develop an understanding of how and why they committed sexual offences. The programme also increases awareness of victim harm. The main focus of the programme is to help the offender develop meaningful life goals that will lead him away from offending. There is a lot of opportunity to practise the skills necessary to achieve these new goals.
17. As I understand it, it is a requirement of participation in SOTP that the offender admits sexual offending. It is not entirely clear whether it is a necessary requirement that the offender admits all the sexual offences of which he had been convicted. In practice, at least in relation to an offender like the Claimant, participation in ETS occurs first. It is only following successful completion of ETS that SOTP is undertaken.
18. There is no dispute but that as at February 2008 the Claimant was unwilling to apply to participate in these courses. On that basis those responsible for the sentence planning review recommended that he should remain categorised as standard under the IEPS. No other grounds then existed for refusing the Claimant enhanced status. His behaviour then (and for some years previously) has been such that had he agreed to apply for and participate in the courses the overwhelming probability is that the Claimant would have been granted enhanced status.
19. As was his right, the Claimant asked the Defendant to review his categorisation under the IEPS following the decision in February 2008. However the Defendant declined to alter the Claimant's status from standard to enhanced
20. Following these decisions the Claimant's solicitors raised queries with the Defendant about the material which had been considered at the sentence planning review and by the Defendant on appeal. In the light of those queries the Defendant decided that a further review of the Claimant's status within IEPS should be undertaken (hereinafter referred to as "the review").
21. The review took place on 14 May 2008. It was conducted by Principal Officer Brian Davies. It was attended by the Claimant and it was also attended by Ms Debbie McQueirns, a chartered psychologist who was then the head of the Psychology Department at HMP Full Sutton. The documents considered at the review have been identified. They are listed at page 146 of the Trial Bundle. Notes of the review were taken and they are before me (Trial Bundle 138 to 142). The decision consequent upon the review was that the Claimant's status within IEPS should be maintained at standard.
22. In the light of this decision updated grounds in support of judicial review were submitted. Again they were settled by Counsel. However, the Claimant now acts in person. He has been without legal representation since April 2009.
23. In advance of the hearing the Claimant submitted to the Court a Skeleton Argument dated 20 April 2009. The document runs to 78 paragraphs and is closely argued. On 30 May 2009 the Claimant submitted a document entitled "Claimant's Case Configuration". That document was intended by the Claimant to "provide lucid and readily comprehensible legal grounds to assist those charged with responsibility for presiding over my case". I should also record that the Claimant submitted three witness statements from fellow prisoners at HMP Full Sutton and a Study, apparently commissioned by the Home Office and published in 2002, which examined reconviction rates of serious sex offenders after their release from long determinate sentences of imprisonment.
24. The document entitled "Claimant's Case Configuration" set out, in summary form, the legal basis of the Claimant's challenge. It described the primary issue in the case as being whether the Defendant's decision to deny the Claimant enhanced status under IEPS was rational and reasonable in all the circumstances of the case. It also identified that the Claimant was arguing that there was insufficient independence between the disciplinary system within the prison and the IEPS and that the Claimant's treatment in prison amounted to breaches of Articles 3 and 8 of the European Convention on Human Rights. During the course of well-structured oral submissions the Claimant essentially provided detailed arguments in support of the issues identified in the "Case Configuration."
25. For the purposes of this judgment I am content to accept and adopt as the primary issue for my determination that identified by the Claimant, namely whether the Defendant's decision to deny the Claimant enhanced status under IEPS was rational and reasonable. Before dealing, specifically, with this issue, however, I should make more detailed reference to the decision of Moses J, as he then was, in Potter.
26. The case involved four claimants who were serving prisoners. They had each been found guilty of serious sexual offences and each of the prisoners challenged decisions to refuse them enhanced status under IEPS. At the relevant time (1999/20000) there existed both a published national scheme and a scheme which was local to HMP Frankland, the prison in which the men were serving their sentences. Each of the Claimants maintained a denial of their guilt of the offences of which they had been convicted.
27. It is to be observed that the terms of the published national scheme considered in Potter were somewhat different to the national scheme relevant in this case. For example the aims of the national scheme in Potter did not include, at least expressly, the aim which appears in the currently published scheme:

"To encourage sentenced prisoners to engage in OASys and sentence planning"

It does not seem to me that anything turns on this difference, however, since the scheme local to HMP Frankland did have as one of its aims the following:-

"4. To encourage prisoners to participate in the sentence planning process and to progress through the prison system."

28. In Potter all four claimants contended that it was unfair and contrary to the national and local published schemes to require them to attend SOTPs in the face of their denial of guilt. Alternatively each prisoner contended that a scheme which required someone who denied an offence to attend an SOTP was irrational.
29. Moses J set out his conclusions on those issues in paragraphs 42 to 45 of his judgment. I set out those paragraphs in full:-

"42. There is, to my mind, nothing unfair or inappropriate in requiring a sex offender, guilty of serious sexual offences as these claimants were, to attend an SOTP, even if he denies he is guilty of those offences. It is a key purpose of imprisonment to encourage constructive behaviour by a prisoner and thereby reduce the risk of his reoffending and increase protection of the public. It is, therefore, fair and rational to encourage participation in a course which may reduce risk of reoffending by means of the schemes for providing an incentive to attend such a course and granting privileges to those who undertake such courses.

43. Prison management is entitled to operate the IEPS and the court is entitled to proceed on the basis that a prisoner, once convicted, is guilty of the offences that form the subject matter of those convictions. A prisoner is not entitled to rely merely upon his assertions of innocence to excuse himself from confronting his offences. Were it otherwise, the system of rewarding those who are prepared to confront their offences would be undermined. One who denies his offence should not reap the same rewards as one who is prepared to admit and confront them.

44. It can hardly be supposed that one who at first denies his sexual offences should straightaway be excused attendance on an SOTP. But if he persists in his denial, at what stage is it to be said that the denial is so entrenched that it is inappropriate to expect him to attend such a course? The question whether his denial is a good reason for non-attendance will depend upon the individual circumstances of the particular prisoner.

45. Those circumstances are considered in the process of sentence planning, as the facts of these particular claimants demonstrate. Sentence planning lies at the heart of the IEPS (see, e.g., paragraph 39, IG74 and 1.9.1 of 4000). Prisoners are encouraged to achieve the targets set in the individual process of sentence planning by the IEPS. It is through that process that that which can be reasonably required of a prisoner is ascertained………….."

30. Moses J went on to reject the claims of Mr Potter and the other Claimants (save to an extent which is irrelevant to these proceedings). The Claimants sought permission to appeal, first from Moses J himself then, upon his refusal, from the Court of Appeal. That court, consisting of Laws and Keene LJJ, refused permission. In paragraphs 11 and 12 of the judgment of Keene LJ he quoted and specifically approved paragraph 42 of the judgment of Moses J (set out above).
31. In the light of the decision in Potter it is easy to understand why the Claimant lays stress upon the need for this Court to consider all the circumstances of his case. It is clear, in my judgment, that Potter is authority, binding upon me, to the following effect. First, there is nothing intrinsically unfair, unreasonable or irrational in requiring a prisoner, as part of the sentence planning process, to apply for and if successful undertake, a course designed to reduce the risks of his re-offending. That is so even if the offender maintains his innocence of the crime or crimes of which he has been convicted and eligibility for the course in question requires the offender to admit guilt. Further there is nothing intrinsically unfair, unreasonable or irrational in declining to grant such a prisoner enhanced status if he refuses to apply for and/or undertake such a course.
32. As will be apparent from paragraph 44 of his judgment, however, Moses J stopped short of holding that such requirements upon a prisoner could never be unreasonable or irrational. He was, at least, prepared to contemplate that there might be circumstances which would justify a conclusion that requiring a prisoner to apply for and attend a course when it was known that the prisoner would not apply or attend since it was known that the prisoner would never admit his guilt would be irrational or unreasonable.
33. I turn, therefore, to consider the circumstances of this case. Understandably, the Claimant lays stress upon the following facts. First he has maintained his innocence of the crimes of which he was convicted since the moment of his arrest. Second he has now been imprisoned for approximately 22 years. Third, the chances of the Claimant reversing his denial and admitting guilt are non-existent; his position is entrenched and it will never change. Fourth, it is common ground that but for the Claimant's unwillingness to apply for and participate in the courses identified in his sentence planning review he would very likely be given enhanced status. These facts are undisputed by the Defendant, save that, in relation to the third it would say that the chances of the Claimant reversing his denial and admitting guilt are limited, and that his entrenched position is unlikely to change.
34. The Claimant also relies upon a number of other features in support of his claim that in all the circumstances the Defendant has acted unreasonably and/or irrationally in refusing him enhanced status within IEPS.
35. First the Claimant submits that he has demonstrated a willingness to engage in work in prison which would lead to reduction in the risk of his re-offending which, of course, is one of the key aims of the courses which are specified in the Claimant's sentence planning. That being so, submits the Claimant, his unwillingness to participate in the specified courses is either irrelevant or much less relevant than would otherwise be the case.
36. The Claimant seeks to make good his submission that he has demonstrated a willingness to engage in work in prison which will lead to a reduction in the risk of his re-offending by reference to a chain of events which first began in 1997. In that year, as I have said, the Claimant was an inmate at HMP Frankland. In his witness statement he says that in or around July 1997 his health began to deteriorate. He attributed this to his circumstances in prison. In his oral submissions the Claimant suggested that he had become suicidal; there is no independent evidence to support that assertion but there is no real dispute in relation to the Claimant's claim that he had become depressed.
37. During the summer of 1997 the Claimant was being assessed by Mr John Carey, a community psychiatric nurse who had, by then, substantial experience of work with sex offenders. The assessment took place at an institution known as the Hutton Centre and the best indication of what transpired between Mr. Carey and the Claimant is contained in a letter dated 7 January 1998 which Mr Carey wrote to Dr A. D. Clarke, then the medical officer and head of Healthcare at HMP Frankland. Much of the letter consists of a summary of information which Mr Carey had obtained from the Claimant about his childhood, early adulthood and his offending in that period. The following further points about the letter are also worth noting. First, in January 1998 Mr Carey was proceeding on the basis that his assessment of and work with the Claimant was unfinished. Second, the purpose of the sessions between Mr Carey and the Claimant was to provide the Claimant with analytical psychotherapy. Third, notwithstanding that primary purpose, Mr. Carey anticipated that an element of risk assessment would be undertaken in relation to the risks of the Claimant re-offending.
38. It is also clear that there had been discussions between Mr Carey and the Claimant and between Mr Carey and other colleagues about the desirability of the Claimant attending an SOTP. Mr Carey expressed this view:-

"Attendance on the SOTP would be counter-productive for him and probably for other course members. Mr Cannan has a history of questioning which can disrupt group work. However, there may come a time to reconsider this as an option."

Mr Carey's assessment of the Claimant was undertaken under the supervision of Mr David Ruthenburg, a Clinical Psychologist.

39. There is no contemporaneous evidence within the bundle as to how or why the sessions between the Claimant and Mr Carey came to an end. What is known for certain is that the Claimant was transferred from HMP Frankland to HMP Full Sutton on 11 November 1998 by which time the sessions had stopped.
40. In his oral submissions before me, the Claimant explained that the sessions with Mr Carey had come to an end following an interview between the Governor of HMP Frankland and himself after there had been contact between the Claimant and Mr Carey for a period of about 7 months. The Claimant asserts that the Governor told him, in effect, that Mr Carey's assessments would not be recognised and it was as direct consequence of this conversation with the Governor that contact between Mr Carey and the Claimant ceased.
41. To repeat, there is no evidence before me to this effect. I cannot, now, determine how or why contact between Mr Carey and the Claimant ceased. All I can do is proceed on the basis that for a period of about 7 months there was regular contact between Mr Carey and the Claimant and that the letter of 7 January 1998 from Mr Carey to Dr Clarke is the best guide to what occurred and what was anticipated.
42. The Claimant also seeks to rely upon meetings which have taken place between himself and Father Michael Kavanagh. As I understand it Father Kavanagh was a chaplain at HMP Full Sutton although he is also qualified as a psychologist. It is not entirely clear to me when meetings have taken place between the Claimant and Father Kavanagh but, there is one document, at least, which shows that they probably took place some time in 2007 and/or early 2008( Trial Bundle page 152).
43. The only evidence available as to what transpired between Father Kavanagh and the Claimant is that which is contained in that document. Father Kavanagh wrote:-

"Mr Cannan's desire to meet and reflect was a positive step forward and he made use of the sessions that we had together."

44. It is clear from the notes of the review that the Claimant placed considerable emphasis upon the assessment undertaken by Mr Carey and the meetings between Father Kavanagh and himself when seeking to persuade Principal Officer Davies that his status should be changed to enhanced. He is recorded as asking Ms McQueirns, specifically, whether any of this "treatment" should be recognised. The notes record that Ms McQueirns said (a) that the Hutton Centre was not known to her; (b) that there was no formal record of the work undertaken and that (c) in any event, such work as was undertaken between the Claimant and Mr Carey was not recognised within the prison system. Ms McQueirns also made it clear that the meetings between Father Kavanagh and the Claimant had been in a pastoral context and that, consequently, nothing that had occurred between the Chaplain and the Claimant could be interpreted as amounting to a psychological assessment or intervention.
45. It is not entirely clear from the notes of the review whether Principal Officer Davies ignored the assessment undertaken by Mr. Carey in 1997/1998 or simply gave it very little weight. However, in my judgment, it matters not which approach he adopted. In the context of this case it was perfectly legitimate for him to conclude that a psychological assessment undertaken in 1997/1998 which was (a) incomplete (b) undertaken at an institution with which Ms McQueirns was not familiar (c) in any event undertaken primarily for the purpose of therapy and (d) not undertaken as part of a course recognised by those charged with responsibility within prisons for devising courses and/or treatment aimed at reducing the risk of re-offending was irrelevant when fixing targets within the sentence planning regime in 2008 which were aimed at reducing the Claimant's risk of re-offending. Alternatively, it was certainly legitimate to conclude that such an assessment was relevant but carried very little weight in relation to a decision about sentence review planning 10 years after the assessment had concluded. Further, in my judgment it was obviously reasonable or rational to conclude that the assessment in 1997/1998 did not remove the need otherwise identified in the sentence review planning for the Claimant to apply for and undertake ETS and SOTP.
46. In my judgment it was also obviously reasonable or rational to conclude that the meetings between Father Kavanagh and the Claimant were pastoral. That being so, it was legitimate to conclude either that such meetings were irrelevant or carried very limited weight in making an assessment about the Claimant's need to undertake courses designed to reduce his risk of re-offending.
47. I have considered the assessment in 1997/8 and the meetings in 2007/8 separately. In reality, of course, they should be viewed cumulatively. Even on that basis, however, there can be no sensible basis upon which to conclude that Principal Officer Davies acted unreasonably or irrationally in treating the significance of the assessment and the meetings as he did.
48. At the review the Claimant also placed considerable reliance upon a report prepared by Dr Arthur Anderson, a consultant clinical psychologist, dated 18 April 2006 and obtained on behalf of the Claimant by his then solicitors. Dr Anderson's report details a psychological assessment of the Claimant. The assessment was based upon an interview with the Claimant; the administering of identified "psychological inventories and tests" and a consideration of various documents identified in Dr Anderson's report. Although Dr Anderson's report is a detailed document, it is sufficient, for the purposes of this judgment, to provide a summary of his main conclusions. First as of the date of the assessment the Claimant was suffering from depression and anxiety. The symptoms were of sufficient intensity to render the Claimant mildly dysfunctional but he was not suffering from a major mental illness. Second, the Claimant would benefit from treatment. Third, the Claimant's condition was such as it would likely improve if the Claimant enjoyed an increase in privileges in prison. Fourth, the Defendant was setting unrealistic targets for the Claimant within sentence plan reviews. It was positively harmful to the Claimant to be expected to undergo courses which required him to admit his guilt in relation to offences which he steadfastly denied that he had committed.
49. As I understand it, Ms McQueirns read and considered carefully the report of Dr Anderson in advance of the review. That much is clear since she sent a memo about the report to a woman called Julie Bradshaw on 14 April 2008. At the review she expressed views about Dr Anderson's report. In particular she referred to the fact that the test results contained within the report indicated that the Claimant was suffering from low levels of anxiety yet Dr Anderson was suggesting the need for treatment and the need to afford further privileges to the Claimant. In her view the contents of the report did not demonstrate that the Claimant's psychological condition was such that he should be given enhanced status within IEPS as a means of combating a significant illness.
50. The Claimant makes the fair point that Ms McQueirns had not interviewed him at the time she commented upon the report of Dr. Anderson. She had not carried out any tests upon him and she had made no formal assessment of him. Those points were obviously relevant when Principal Officer Davies was assessing the weight to be attached to Dr Anderson's report, on the one hand, and Ms McQueirns' criticisms of the report on the other.
51. Notwithstanding those points, however, there is no real basis for concluding that Principal Officer Davies did not evaluate the weight to be attached to the report of Dr Anderson when reaching a decision about whether the Claimant should be required to apply for and undertake courses as part of his sentence plan review and/or when deciding whether or not the Claimant should be afforded enhanced status within IEPS as a means of combating a mental illness from which he was suffering. Provided he realised, as he must have done, that the views of Ms McQueirns were a critique of the views of Dr. Anderson as opposed to an independent comprehensive assessment of the Claimant, he was entitled to accept the views of Ms McQueirns upon Dr. Anderson's report. That is what he did.
52. The notes of the review were disclosed to the Claimant's then solicitors in the summer of 2008. The result was that the solicitors instructed Dr Anderson to provide a further report. Such a report was produced on 2 December 2008 following an assessment on 7 November 2008. This report reiterates many of the views expressed in Dr Anderson's first report. In particular it confirms that the Claimant was not suffering from a major mental illness although he suffered from depression. The report also dwells in detail on the ineffectiveness, in the view of Dr Anderson, of setting as a target for the Claimant the undertaking of any course which requires him to admit his guilt in relation to the offences of which he was convicted.
53. The Defendant relies upon a witness statement by Ms McQueirns in response to this second report. In summary she continues to express the view that the Claimant's psychological difficulties, such as they are, are not caused by his current status within IEPS. Further she maintains her view that changing the Claimant's status within IEPS to "enhanced" would have no material effect upon his current condition.
54. Ms Grey, for the Defendant, submits that it is apparent from the notes of the review that Dr Anderson's first report was given careful consideration. In my judgment that submission is well founded (see Trial Bundle page 141). In my judgment, it cannot be said that Principal Officer Davies unreasonably and/or irrationally failed to have regard to the contents of Dr Anderson's report. The reality is that he was faced with conflicting views from two clinical psychologists and he was obviously entitled to act upon the view of Ms McQueirns notwithstanding that she had undertaken no formal assessment of the Claimant. Importantly, in my judgment, Principal Officer Davies was entitled to conclude that the report of Dr Anderson did not demonstrate, in the face of Ms McQueirns' criticisms, that it was unreasonable to require the Claimant to apply for and undertake if accepted upon ETS and SOTP.
55. In his written oral submissions the Claimant relied upon one further point in seeking to demonstrate that the decision of the Defendant consequent upon the review was unreasonable and/or irrational. The seeds of this point go back many years and need a little explanation.
56. On a number of occasions whilst serving his sentence the Claimant has been interviewed by the police in relation to the disappearance and presumed murder of an estate agent, Miss Suzy Lamplugh, who was based in London prior to her disappearance. The disappearance of this young woman has received huge publicity, from time to time, and the Claimant accepts that he has been suspected of her abduction and murder albeit he asserts that there is no foundation for this suspicion.
57. The Claimant also asserts that over the years he has been the subject of "extremely prejudicial high profile media coverage" about his alleged involvement in the disappearance of Miss Lamplugh.
58. In December 2001, as I have said, the Claimant's status within IEPS was changed from enhanced to standard. Thereafter, according to the Claimant, his then solicitors advised him against participating in any interviews with persons having "investigatory powers". The Claimant understood the advice to include persons such as psychologists employed by the Home Office and/or within the prison service. Consequently, since 2001 the Claimant has refused to participate in interviews with psychologists except on terms which he has sought to lay down. It may be that over time the precise nature of the Claimant's terms has altered. Without doubt, however, there have been periods when the Claimant has asserted that he would consent to being interviewed by psychologists only if he was allowed to make a tape recording of the interview and either retain the tape himself or send it to his solicitor for safekeeping.
59. The Defendant has never acceded to the Claimant's demands in relation to the tape recording of interviews. He has, however, offered to permit tape recording of interviews on the basis that the tape recording is kept within the custody of prison officers. That offer has not been accepted by the Claimant.
60. The consequence of the impasse has been that no psychological assessments of the Claimant have occurred which include the content of one to one interviews between Claimant and the psychologist. When I say no such assessments have taken place I mean, of course, since about 2001. The Claimant submits that the Defendant's refusal to authorise psychological assessments on the basis of the Claimant's terms as to the conduct of interviews has prevented the Claimant from undergoing regular assessments. In turn that has prevented him from demonstrating to psychologists within the prison service that his risk of re-offending has reduced.
61. In my judgment there is no substance to this argument. It is for the Defendant to decide how interviews are to be conducted between prisoners and psychologists. It is not unreasonable or irrational for the Defendant to refuse to permit interviews between prisoners and psychologists on terms which are dictated by the prisoner. That is so generally, in my judgment, and it is certainly so in the context of this case. I readily accept that the Claimant has been the subject of many interviews by the police about the disappearance of Miss Lamplugh. I also accept for the purposes of this case, since it is not contradicted by the Defendant, that he has been the subject of adverse or even prejudicial media comment about his involvement in such disappearance. That does not mean, however, that the Defendant has acted unreasonably in refusing to agree to the Claimant's demands in relation to the tape recording of interviews between psychologists and the Claimant.
62. As will be apparent from the foregoing I have reached the clear conclusion that many of the points upon which the Claimant relies to support his submission that the Defendant has acted unreasonably and/or irrationally in the decision reached consequent upon the review are without foundation.
63. Ms Grey submits that there are yet further considerations which were properly taken into account when Principal Officer Davies declined to award enhanced status to the Claimant. First and foremost she submits that no reason of any kind has been advanced by the Claimant for refusing to apply for ETS. As I have said, participation in ETS does not require that the participant admits guilt. Participation in ETS comes before any participation in SOTP.
64. Ms Grey acknowledges that following successful completion of ETS the Claimant would be expected to apply for and participate in SOTP. However, she submits that it cannot be predicted necessarily that the Claimant would maintain a refusal to apply for or participate in this course (notwithstanding the need to admit guilt) for two reasons. First, the Claimant's entrenched attitude might be altered following successful completion of ETS. Second, and in any event, there would be room for discussion, at the very least, about whether the Claimant need necessarily admit guilt in relation to the 1989 convictions as opposed to acknowledging, again, his guilt in relation to the sexual offence (rape) which he committed before 1989.There is the further point that if the Claimant agreed to assessments by psychologists without reservations relating to tape recording of interviews or custody of the tapes the Claimant may begin on a path which might lead to risk reduction with or without the need for participation in SOTP.
65. A further consideration, submits Ms Grey, is one which is expressly referred to in the notes of the review, namely the fact that the Claimant's tariff of 35 years is likely to expire well within the predicted lifespan of the Claimant. At the point in time when his tariff expires the Claimant will be eligible for consideration for release on licence. Ms Grey submits that it is reasonable and rational for targets to be set in sentence planning reviews in respect of the Claimant which have as their aim reducing the risk of re-offending given that release is at least a possibility in his case.
66. In the light of the circumstances as they exist in this case I return to the question which was posed in paragraph 44 of the judgment of Moses J in Potter. Has the stage been reached when it has become inappropriate to comply with the targets set in the Claimant's sentence plan review? I accept the submissions made by Ms Grey that such a stage has not been reached. It seems to me that valid reasons (as identified by her and summarised above) still exist for requiring the Claimant to meet the targets set in his sentence planning review so that notwithstanding that he has maintained a denial in relation to the offences of which he was convicted in 1989 for a very long time the stage has not been reached at which it would be appropriate to say that it is no longer reasonable or rational to expect the Claimant to comply with the targets. If that is correct it seems to me to follow that the deliberate failure to comply with the targets by the Claimant is, itself, a proper reason why Principal Officer Davies was entitled to decline to change the Claimant's status within IEPS to enhanced. There was nothing unreasonable or irrational about that decision. It actually accords with the nationally published policy. Accordingly, the Claimant's primary ground of challenge must fail.
67. I turn to deal briefly with the other grounds of challenge identified by the Claimant.
68. There is nothing in his suggestion that there is insufficient independence between the disciplinary system within prison and the IEPS. The Claimant has not been refused enhanced status as a punishment. Nor, more importantly, does the refusal to grant the Claimant enhanced status amount in any sense to a punishment. The Claimant has simply failed to earn a privilege through non-compliance with targets set within his sentence planning review. In my judgment there is simply no link between the disciplinary system within the prison and a decision about whether the Claimant should be afforded a privilege.
69. The claims under the Human Rights Act 1998 are doomed to failure. The Claimant simply cannot establish that he has been the victim of treatment falling within Article 3 or Article 8.
70. Article 3 contains an unqualified prohibition against inhuman or degrading treatment or punishment. Ill-treatment must attain a minimum level of severity in order to fall within Article 3 see Ireland v United Kingdom (1980) 2EHRR 25. The same case also establishes that treatment causing mental suffering is sufficient to fall within Article 3 provided a sufficient degree of intensity is reached.
71. The only evidence filed which begins to support a claim that Article 3 has been breached is the evidence contained within the reports of Dr. Anderson. There are passages in both reports of Dr Anderson which might, at first blush, convey the impression that, at the very least, the Claimant is at risk of developing a very significant mental illness. However, Dr Anderson does not assert that the Claimant has suffered such an illness; nor does he assert that he is currently suffering from such an illness. Further, Dr Anderson offers the view that such mental illness as is suffered by the Claimant may be alleviated by appropriate treatment (although he does not say what that treatment should be).
72. The witness statement served by Ms McQueirns is a powerful riposte to many of the points made by Dr Anderson. In particular it casts very significant doubt upon whether such psychological difficulties as are being suffered by the Claimant are consequent upon his current IEPS status as opposed to the fact that he has been in prison for a very long time.
73. In my judgment the evidence of Dr Anderson when looked at in the context of powerful criticisms by Ms McQueirns falls short of establishing that the Claimant has been a victim of a breach of human rights under Article 3 of the Convention.
74. In Potter Moses J dismissed the claims pursued under Article 8 of the Convention. In this case the Claimant seeks to rely upon a decision of the European Convention of Human Rights in Norris v Ireland. The Claimant gave the reference 10581/83. I have considered two decisions entitled Norris v Ireland [1985] 44 DR 132 and Norris v Ireland (A/142) (1991) 13 EHRR 186. I am reasonably sure that it is the first of these two cases that the Claimant relies upon. However, I can find no basis within that case for a conclusion that the Claimant's rights under Article 8 have been infringed in this case. No useful purpose would be served in setting out significant extracts from Norris since, in my judgment, the issues in Norris have no bearing upon whether the Claimant's right to respect for his private and family life has been infringed. Indeed, I mean no disrespect to the Claimant when I say that he did not begin to explain to me how a claim under Article 8 was likely to succeed.
75. I have reached the conclusion that this claim must be dismissed. I should record for completeness that nothing in the research document put in by the Claimant nor the three witness statements from fellow prisoners lead me to the view that the Defendant or any other person employed within HMP Full Sutton who has been responsible for making decisions affecting the Claimant has acted unlawfully or in a manner which has breached the Claimant's human rights. The witness statements from fellow prisoners do not have a bearing upon whether the Defendant has acted unlawfully in relation to the Claimant.
76. Given the way this litigation has unfolded the focus, inevitably, has been upon the review and the decision consequent upon it and the Claimant's mental condition at the time of Dr Anderson's first report and subsequently. From time to time in his submissions, however, the Claimant referred to decisions made earlier in time and to his mental condition prior to the involvement of Dr Anderson.
77. No useful purpose would now be served in considering decisions about the Claimant's status within IEPS made prior to June 2008. This case is about the present not the past. In so far as the Claimant made submissions about his mental health prior to 2006 it seems to me to be clear that as and when he complained of symptoms of mental illness he was provided with the opportunity to obtain treatment. The obvious period when this must have been so was in 1997/1998 when the Claimant was assessed by Mr Carey.
78. I propose to hand down this judgment in the absence of the parties. I will do so at the Cardiff Civil Justice Centre on Monday 29 June 2009. I presume that the Defendant will invite me to make no order for costs between the parties. That is the order I shall make unless I receive contrary written submissions from the Defendant which, obviously, I will consider. It is at least possible that the Claimant will wish to appeal against this judgment. Ordinarily a litigant is expected to make an application for permission to appeal to the trial judge but given that the Claimant is in prison and I am sitting in Cardiff that is not practicable. Accordingly, if the Claimant wishes to appeal against my decision he should seek the permission of the Court of Appeal. The appropriate procedure is that he must seek permission to appeal in his Notice of Appeal and he must file the Notice of Appeal at the Court Office within 21 days of 29 June 2009. He should also serve his Notice of Appeal upon the Defendant either at the same time that he filed it or, in any event, not later than 7 days after he files his Notice of Appeal.