England and Wales High Court (Administrative Court) Decisions

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

		Leeds Combined Court Centre The Court House 1 Oxford Row Leeds LS1 3BG
		18 August 2009

His Honour Judge Langan QC:

Introduction

1. The claimant is a prisoner serving a life sentence and is past his tariff date. The decision which was the subject of challenge before me was made on 15 May 2009, after the commencement of these proceedings. That decision was made by senior officials within the Public Protection Casework Section ('PPCS') of the National Offender Management Service 'NOMS'). It was to the effect that the claimant, who had previously been in a Category D (or open) prison and was at the time of the decision in a Category C (closed) prison, should not be returned to open conditions. Permission to apply for judicial review was given by His Honour Judge Grenfell on 23 July 2009.
2. The decision under review is attacked on three different bases. First, irrationality: the principal submission here is that the decision cannot be justified by the material, principally a report from a trainee forensic psychologist, on the basis of which it was made. Second, inconsistency with an earlier decision of 23 March 2009, which was to the effect that the claimant was suitable for open conditions. Third, procedural unfairness lying in the non-disclosure to the claimant or his representatives prior to 15 May 2009 of the report to which I have just referred. If the application for judicial review were to succeed on the first or second of these grounds, the result of quashing the decision of 15 May would be that the claimant would return to Category D status. If he were to succeed only on the third ground, he would merely obtain a fresh consideration of the type of establishment in which he should be held.

Narrative

3. The claimant has been described, perhaps tautologically, as a serial recidivist. The description is, however, one with which both counsel concur. He was born on 16 April 1957, and so is now 52 years old.
4. Between 1973 and 1997 the claimant had 17 court appearances for matters which included threatening behaviour, robbery (twice), deception, common assault and assault occasioning actual bodily harm
5. In 1997 the claimant was sentenced to 5 years imprisonment for possession of a firearm with intent to cause fear of violence.
6. On 15 December 2003 the claimant, on his plea of guilty in respect of seven offences of robbery, one of attempted robbery, and related firearms offences, received an automatic sentence of life imprisonment. The sentencing judge set the tariff at 3 years and 8 months. The offences were committed against a series of betting shops and other commercial premises over a period of several weeks, the motivation being the claimant's requirement of money to pay his drug debts and to satisfy his addiction to heroin and crack cocaine.
7. After time spent on remand had been taken into account, the tariff period expired on 1 July 2007.
8. By June 2008 the claimant was a category C prisoner at HMP Littlehey.
9. The claimant's case was most recently considered by the Parole Board on 19 June 2008. The Board communicated its recommendation in a letter dated 26 June 2008. At the hearing, both the claimant and the defendant were legally represented. The Board had to consider extensive written material and heard oral evidence from the claimant and from five other witnesses. The case for the claimant was that he should be released to a drug rehabilitation hostel. Reliance was placed on his good conduct in prison and on what was said to be his improved understanding of his offending and of the reasons for his having resorted to drugs in the past. The case for the defendant was that the claimant should remain in closed conditions. Reliance was placed on the evidence of two psychologists and on the view of the home probation officer that what was called "a period of consolidation" in closed conditions was necessary before the claimant could safely be moved to another regime.
10. The material before the Board included a recent OASys assessment and an HCR-20 report. The former indicated a high risk of reconviction and a high risk of harm to the public. The latter indicated a moderate risk of violence.
11. The Board did not accept the primary submissions made on behalf of either party, but adopted a middle course, of recommending the transfer of the claimant to Category D. The conclusion was reached after balancing "the current level of risk against the benefits of a progressive move, having considered your progress in custody, the likelihood that you would comply with open conditions, the need for you to be tested in a less secure environment and the need to develop a robust release plan."
12. The defendant accepted this recommendation, and on 4 September 2008 the claimant was moved to HMP Leyhill, which is an open prison.
13. On 9 October 2008 the claimant met his allocated psychologist, Ms Madeleine Hamilton, for an induction interview. She concluded that the claimant should be assessed for his suitability for a Cognitive Self Change Programme ('CSCP'). In 2006 he had, whilst at HMP Dovegate, been assessed for this programme but, because of an upper age limit for the programme, he could not then be placed on the programme. The criteria had since changed, and he was now eligible. Assessment for the CSCP can be carried out only in closed conditions.
14. On 15 December 2008 the CSCP treatment lead concurred with Ms Hamilton's recommendation.
15. It appears from an e-mail of 17 December 2008 that there had been discussions at a relatively high level about the claimant, and that three other psychologists (including Ms Laura Bell who had seen the claimant whilst at Littlehey) agreed with Ms Hamilton.
16. On 19 December 2008 the claimant was returned to closed conditions. He first spent two weeks or so at HMP Bristol and then, at the beginning of January 2009, was transferred to HMP Littlehey with a view to an initial CSCP assessment being carried out.
17. On 28 January 2009 the claimant's solicitors wrote to the Treasury Solicitor, asking that their client be re-categorised to Category D forthwith.
18. On 10 February 2009 a probation officer at HMP Leyhill wrote a a Sentence Planning and Review Report ('SPR') which, after a lengthy review of the claimant's history, ended with the recommendation that he should complete the CSCP before being returned to open conditions.
19. On 17 February 2009 Ms Hamilton and a more senior psychologist signed an SPR to which I will be referring in some detail later in this judgment. At this stage it is sufficient to say that, like the probation officer, they were of the view that the claimant should not go back to an open establishment.
20. On 16 March 2009 the claim form was issued.
21. On 23 March 2009 Richard Walden of the PPCS within NOMS wrote to the claimant informing him that he was now suitable for open conditions "for the following reasons [sic]: There has been no increase in your risk of serious re-offending since your transfer to open conditions was approved by the Secretary of State."
22. Moving ahead, on 15 May 2009 Mr Walden wrote again to the claimant:

I write further to my letter of 23 March 2009.

Senior Officials within Public Protection Casework Section have now re-considered your continued suitability for open conditions in the light of the recent incident at HMP Littlehey when you rubbed a pregnant member of staff's stomach, and Madeleine Hamilton's SPR E dated 17 February 2009 (attached) and have decided that you are not suitable to be returned to open conditions at the present time. The Parole Board will give consideration to your continued suitability for open conditions (as well as for release) during the course of your current Parole Board review, which is still scheduled to conclude in August 2009…

Thank you for your letter of 20 April, which was considered by Senior Officials in relation to the matters above. It is acknowledged that your touching of Ms Bell was an error of judgment for which you duly apologised and was not malicious.

23. I now have to look at the two matters referred to in the letter of 15 May 2009.
24. The incident involving a female member of staff can be dealt with briefly. It does not appear that the claimant acted with a view to his own gratification or to causing distress to Ms Bell. He was, rather, following a curious custom of touching the stomach to wish "good luck" to the unborn child. Inappropriate though this may be, it is not misbehaviour of the most serious kind.
25. The SPR of 17 February 2009, to which I referred briefly in paragraph 19, had been signed by Ms Hamilton, who is a trainee forensic psychologist, and Ms Christina Moreton, who is a chartered forensic psychologist. It seems certain that it had not been seen by Mr Walden or by senior officials within the PPCS when the letter of 23 March 2009 came to be written. The report ends with the following recommendations:

8.2 Mr Spicer has an extensive history of violence and has not specifically addressed his use of instrumental violence through accredited offending behaviour programmes. Mr Spicer's insight into his use of violence, especially instrumental violence, is poor. This inevitably reduces his ability to monitor and manage his risk to avoid future violent re-offending. The risk factors linked to instrumental violence are central to his re-offending.

8.3 One way to address these outstanding issues would be through one-to-one work. Previous one-to-one work conducted on instrumental violence and weapon use does not appear to have increased Mr Spicer's insight into his violent offending. One-to-one work is not available at HMP Leyhill due to the focus on risk assessment, risk monitoring and onward progression towards release of life sentenced prisoners whose risk is assessed as sufficiently manageable. For this reason, Mr Spicer cannot remain at HMP Leyhill. It is possible that individual work is available at a Category C prison, but many prisons focus their resources on accredited group-work due to the greater success rate achieved with this approach over individual work. Currently there are lengthy waiting lists in some establishments for CSCP although I consider that this programme would best address risk factors linked to instrumental violence. Further work will delay Mr Spicer's progression towards release, which is not ideal, especially since he was progressed to open conditions. However, consideration of risk to the public is the primary priority and this must be assessed as being manageable in order to consider progression towards release. Currently this is not the situation.

26. There have been some further developments since the decision of 15 May 2009.
27. The CSCP is a high intensity programme for serious violent offenders. The programme is delivered in only three prisons, the number of places available annually being 40: but, of these 40 places, only 10 are available (at HMP Channings Wood) for Category C prisoners. In a letter of 23 July 2009 from Psychological Services at HMP Channings Wood to the claimant, the claimant was informed that he was now eligible for full assessment for the CSCP and had been placed on the waiting list. He was further informed that Channings Wood "currently aim[s] to complete full assessment and offer a place on the programme within 2 years of an individual coming on to the full assessment waiting list."
28. Finally, the claimant has a pending Parole Board review. I use the word "pending" rather than "imminent" because the best information which counsel were able to give me was that the present month, August, had been the target for the hearing; that cases are listed two months in advance; that the claimant's case has not yet been listed; and that no one can say when it will be listed.

First issue: irrationality

29. The challenge to the decision of 15 May 2009 on the ground of irrationality was a two-pronged one. The first limb of the argument, on which Mr Stanbury's written submissions were focused, had to do with the alleged irrationality of returning the claimant to closed conditions in order to go on a course which is not available in the near future. The second limb of the argument, which received more stress in Mr Stanbury's oral submissions, concentrated on alleged deficiencies in Ms Hamilton's report.
30. In my judgment, neither approach carries the claimant anywhere close to demonstrating irrationality to the high degree necessary before an executive decision is overturned.
31. In the course of submissions on the first limb, it was suggested that the defendant was in breach of a public law duty to make the CSCP available to the claimant in circumstances in which his eventual release was effectively being made to depend on his completing such a course. I do not agree. As is demonstrated by the decision of the Court of Appeal in The Queen (on the application of Cawser) v Secretary of State for the Home Department [2003] EWCA Civ 1522, such a duty is qualified by the extent of available resources: see Simon Brown LJ at paragraph 34. Cases in which breach has been established have involved circumstances particular to the individual case, e.g. where two-thirds of the national backlog of sex offender reports was to be found at a single prison and there was no adequate explanation why this had come about: see The Queen (on the application of Kehmal Mehmet) v The Secretary of State for Justice [2009] EWHC 1202 (Admin).
32. Then Ms Hamilton's report was criticised on a several fronts: her status (being a trainee forensic psychologist); the limited extent to which she had face-to-face contact with the claimant; and the fact that much of what she said was based on reports which were before the Parole Board in June 2008 when, after careful consideration, the Board rejected the submission that the defendant should remain in closed conditions. Again, these criticisms do not appear to me to come close to demonstrating irrationality in the decision ultimately reached. By the date of the report, Ms Hamilton had five and half years experience in prison work. Her co-signatory is a chartered forensic psychologist. There is no ground for presenting her meeting with the claimant as though it were some kind of superficial chat: the contents of the report suggest otherwise. It is true that much of the material which she had was included in the material which led the Parole Board to come to a different conclusion, but that fact alone does not demonstrate that Ms Hamilton was wrong and, in any event, the question of the claimant's eligibility for CSCP does not appear to have been the subject of consideration by the Board.
33. If one looks at matters in the round, this was one of those difficult cases in which two views were possible. One view cannot be classified as irrational if there was sufficient material to support it. There was, in my judgment, ample supporting material. For my part, I find Ms Hamilton's report impressive. But it did not stand alone: the claimant's record, the most recent OASys assessment, the HCR-20 report, the views of two forensic psychologists in addition to Ms Hamilton and Ms Moreton, and the opinion of the prison probation officer, all bolster the decision, even though it may well have been Ms Hamilton's report which ultimately tipped the balance. The defendant's primary concern had to be with the protection of the public and the decision, taken after reconsideration by senior officials within NOMS, was plainly directed to that end. If protection, and the claimant's own future, could best be secured by sending the claimant on to a CSCP, a finite delay before a place is available for him is of course to be regretted, but it does not make good the case on irrationality.

Second issue: inconsistency

34. The claimant's case under this heading rests on the fact that he has been the subject of four categorisation decisions in under a year and that he falls within the inconsistency principle enunciated by His Honour Judge Michael Kay QC in The Queen (on the application of Lowe) v Governor of HMP Liverpool [2008] EWHC 2167 (Admin). In particular, the decision of 15 May 2009 is inconsistent with the earlier decision of 23 March 2009.
35. I confess to having considerable sympathy for the claimant's situation. Without there having been any deterioration in his own conduct (the Ms Bell incident excepted) he has twice been placed in Category D, and twice put back to Category C – although as between March and May this year, he was not actually transferred to an open establishment. But the disappointment which the claimant must naturally have felt at what could colloquially be called a double whammy is not the same as a reviewable departure from the principle of consistency. The claimant's case on inconsistency is indeed stronger than that of another serving prisoner, for whom Mr Stanbury recently appeared in this court: see The Queen (on the application of Allan Manhire) v The Secretary of State for Justice [2009] EWHC 1788 (Admin). If, however, one looks at the limitations on the principle of consistency set by Judge Kay in Lowe, it does not appear to me that the principle has been breached in this case.
36. Judge Kay was anxious to avoid prisoners being placed at the mercy of differing views of different prisoner governors: see paragraph 36 of his judgment. Put bluntly, prisoners should not be re-categorised on something approaching a whim. He went on to say that a prisoner may (lawfully) be re-categorised "if there has been a change in circumstances or there is some other substantial reason for a re-categorisation." In my judgment, if one analyses what occurred in the present case, the placing of the claimant in Category C by the letter of 15 May 2009 was justified.
37. Between September 2008, when the claimant was transferred to HMP Leyhill, and the decision of 15 May 2009, there was one event which appears to me to be of overwhelming importance. It was only after September 2008 that the claimant became eligible, or that it was established that he had become eligible, for the CSCP for which, undoubtedly, he had previously been ineligible. This was, in my opinion, a substantial change in circumstances which justified a re-categorisation. That the change was in the eligibility conditions for CSCP rather than in the claimant's personal circumstances does not, pace Mr Stanbury's submissions to the contrary, appear to me to matter. There is a sense in which it is the letter of 23 March 2009 which is out of step with the rest of the history in that the decision communicated by that letter was, unlike all the other decisions, made in ignorance of the full facts.

Third issue: procedural unfairness

38. The argument here is that Ms Hamilton's report was an important document, which played a major role in the decision-making process which led to the letter of 15 May 2009, and that the fact that the claimant and his advisors had no opportunity to comment upon it, rendered the procedure unfair. The proposition seems to me to be self-evident or very nearly so. It is in accordance with authority: see the principles deduced from the cases by Jackson J in The Queen (on the application of Banfield) v Secretary of State for Justice [2007] EWHC 2605 (Admin), paragraph 28. It seemed to me that Mr Serr's response to this submission was somewhat faint and concentrated, not so much on the issue of unfairness, as on the consequences of a finding of unfairness.

Disposal

39. I have set out in paragraph 28 of this judgment such information regarding the claimant's next Parole Board hearing as it available. At that hearing the claimant will have an opportunity to canvass with the Board both the question of categorisation and more extensive issues, e.g. he may once again seek discharge to a hostel. If that hearing is scheduled to come on over the next two months or a little longer, then it would, in my judgment, be disproportionate, by which I mean of no particular benefit to the claimant and unnecessarily burdensome to the defendant, to require the defendant to reconsider the question of categorisation in the meantime. The course which, in my judgment, will meet the justice of the case will be to require the defendant to reconsider the claimant's categorisation, but to add to the order a proviso that the defendant shall not be obliged to embark on this exercise if within 2 weeks from the handing down of judgment (i.e. by 1 September 2009) the Parole Board has fixed a hearing for no later than 30 October 2009. This is not, in my judgment, to encourage queue-jumping before the Parole Board of the kind which has been deprecated by Collins J in The Queen (on the application of Betteridge) v The Parole Board [2009] EWHC 1638 (Admin). It is simply tailoring the remedy which is required to do justice in this case, with which the Parole Board is not concerned, to the particular situation of those who are parties.