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
		5th October 2009

His Honour Judge Davis Q.C. [The Recorder of Birmingham] :

1. In these proceedings the Claimant seeks judicial review of the Defendant's decision of the 18^th March 2009 to refuse to allow the Claimant to submit a Tutor Marked Assessment (TMA) to the Open University, permission to apply for judicial review having been granted on the 6^th April 2009 by Lord Carlile of Berriew Q.C.
2. The Claimant's grounds for applying for judicial review are that the decision:

•    violated the Claimant's right under Article 10 of the European Convention on Human Rights (EHCR) to freedom of expression;

•    violated the Claimant's right to education under Article 2 of the First Protocol to the EHCR;

•    was insufficiently reasoned;

•    was in breach of his reasonable expectations; and

•    was in breach of the policies of the Defendant.

Lord Carlisle of Berriew Q.C. when giving leave observed that the decision may be considered to be irrational and perverse and contrary to established policy and practice.

The Factual Background

3. The Claimant is a prisoner serving a sentence of life imprisonment. The sentence was imposed for an offence of murder. The Claimant had murdered a 17 year old female in about 2000. He appears to have pleaded guilty to that offence. The parties were not able in these proceedings to identify precisely when the sentence had been imposed but it was in 2000 or 2001. The minimum term ordered to be served by the Claimant before he could be considered for parole was 15 years. For such a minimum term to be imposed in 2000 or 2001 the index offence must have involved significant aggravating features, the applicable practice direction at that time being the content of the letter of the 10^th February 1997 sent to judges by Lord Bingham of Cornhill.
4. In the later part of 2008 and the early part of 2009 the Claimant was being held in HMP Swaleside. By then he had completed an undergraduate degree in social policy with the Open University. He was undertaking post-graduate study for which he had received funding from the Open University. That course of study commenced in about November 2008. It was supervised by a Mr. Gordon Jackson, an education tutor engaged as a sub-contractor within the Prison Service. In December 2008 the Claimant submitted to the Open University his first tutor marked assignment (TMA). The Open University tutor made comments in writing about this first TMA following which the Claimant prepared his second TMA (TMA02). It is TMA02 which the Defendant refused to allow the Claimant to submit for assessment.
5. The title of TMA02 is:

To investigate the identification of a predictive model which can be produced to indicate heightened risk to women facing domestic violence re: potential loss of life

The document is 21 pages long (including the copy of the first TMA which is annexed to TMA02). It sets out in considerable detail the research proposed by which the investigation would be conducted. In summary the proposal consists of two strands: first, the issue of a questionnaire to 200 men convicted of "femicide in a domestic environment"; second, semi-structured interviews of a much smaller number of such men. The document includes an outline though relatively detailed timetable of the research. The timetable anticipates 12 months being required for completion of the project i.e. up to and including submission of the relevant dissertation.

6. In early March 2009 – the precise date is not available – the authorities at HMP Swaleside became aware that the Claimant had prepared TMA02 and that it was intended to submit this to his Open University tutor. On the 17th March 2009 Paula Ratledge, the Head of Public Protection at the prison, interviewed the Claimant. Paula Ratledge is a Senior Probation Officer of many years' standing. The interview was intended to assess the Claimant's motivation for submitting TMA02. In the interview the Claimant stated that his reason for selecting the topic he had was that he had identified a "gap in the research" [a reference to his belief that there had been little or no 'gender neutral' research into femicide] and that, by filling the gap, he would "help to save lives".
7. On the 18^th March 2009 a body known as the Swaleside Public Protection Committee met to discuss the Claimant's project and whether he should be allowed to submit it. Paula Ratledge chaired the meeting. Gordon Jackson was one of those present. The meeting lasted 2 ½ hours. In the first part of the meeting various participants reported on their understanding and perceptions of the Claimant's proposal and intentions. Gordon Jackson (who clearly had had the closest dealings with the Claimant in relation to the proposed project) asked for the committee to make a decision "on whether (the Claimant) can continue with his current research". Mr. Jackson reported that the Claimant had asked him to contact a research unit at Cardiff University which was known to conduct research into domestic violence and that he wished to be transferred to a prison near Cardiff so as to be closer to this unit. Mr. Jackson described the Claimant as "very excited and thrilled" by the proposed project. A wing officer with responsibility for the Claimant reported that he had asked staff to provide information from the files of offenders held at Swaleside i.e. offenders convicted of domestic violence where the victim had died. Paula Ratledge told the meeting of her interview with the Claimant. She said that the Claimant had shown her the questionnaire which he proposed to use i.e. to submit for completion by those convicted of homicide in a domestic setting.
8. The meeting moved on to consider a decision. Paula Ratledge posed the question: "Do you think he should be allowed to do the research?" In the course of the discussion of the question posed, Gordon Jackson said that the Claimant "will leave this subject behind". Paula Ratledge's deputy, Michael Nicolaides, asserted that the Claimant had not kept his work "hypothetical". Paula Ratledge herself said that the Claimant had told her that later in his education he wanted "this topic to be his main focus and would like to do the research for real".
9. The decision of the committee was that submission of the TMA02 should not be permitted. Mr. Nicolaides informed the Claimant verbally of the decision on the same day. The decision was reduced to writing in a letter to the Claimant of the 20^th March 2009. The letter was headed "Hypothetical research proposal into domestic violence". It set out four reasons for the decision as follows:

It is not appropriate at this time for you to be researching domestic violence – hypothetically or otherwise

You need to address your offending behaviour before you undertake research into offending by others of a similar nature to your own

By carrying out research into domestic violence in general terms there is a risk that you are distancing yourself from your own offending and therefore increasing the risk of harm that you pose to others

Concentration on the academic study of domestic violence is a distraction from your need to examine and address your own offending

The letter referred also to Prison Service Order PSO 0050. This is entitled Acceptable Activities in Prisons and is concerned with public relations. It identifies that a Governor of any prison must consider "how it is likely to be perceived by the public and by victims" when deciding whether to permit an activity.

10. The letter fairly reflected the reasoning of the committee as appears from the minutes of the meeting. The matters considered by the committee were the effects of the proposed research on the Claimant's own offending behaviour (and the continuing risk he might present) and the public perception of such a proposal being put forward by the Claimant.

The Legal Background

11. Rule 32(2) of the Prison Rules (made under Section 47 of the Prison Act 1952) provides as follows:

……subject to any directions of the Secretary of State, reasonable facilities shall be afforded to prisoners who wish to do so to improve their education by training, by distance learning, private study and recreational classes in their spare time ……

12. Article 10 of the EHCR is as follows:

1. Everyone has the right to freedom of expression. this right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

13. Article 2 of the First Protocol to the ECHR is in these terms:

No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religions and philosophical convictions.

14. The effect of these provisions is not to provide a prisoner with an absolute right to follow his chosen educational course. The Prison Rules provide that "reasonable facilities" are to be provided. The Claimant's Article 10 right is subject to any restriction necessary for the various reasons set out in Article 10(2). Article 2 of the First Protocol does not prevent the state from limiting the access of a prisoner to a particular course or other educational opportunity where to do so is consistent with the aims and purposes of the sentence imposed on the prisoner and/or the wider legitimate aims and purposes of the prison system.

Discussion

15. In his written grounds the Claimant submitted that the reasons given for the Defendant's decision were inadequate and/or unreasonable and that issues of public perception had no rational bearing on the issue of TMA02. He submitted also that, by the actions of Mr. Jackson in allowing the submission of the first TMA and the preparation of TMA02, the Defendant (by Gordon Jackson) had appeared to agree to the submission of TMA02 so as to cause the Claimant to act to his detriment. Thereby the Claimant had a legitimate expectation that the TMA02 would be submitted.
16. The Defendant 's written grounds for contesting the claim defended the decision on the basis that the reasons given were consistent with the Defendant's rules and policies, that the application of those policies was carried out in a reasonable and rational fashion, that public perception is a proper matter to be considered when assessing the intended activity of a prisoner and that the Claimant had no legitimate expectation as suggested (or none that could not be overridden by the public interest) because inter alia he had not provided Gordon Jackson with any detail of his own offence.
17. At the outset of the hearing of the application, Mr. Field, on behalf of the Claimant, argued that the issue in fact was simple. He asserted that TMA02 was not intended to be an actual research project. Rather, it was a hypothetical exercise devised purely for the purpose of assessment of the Claimant's ability to construct a research project. It had been completed. There was no stated or declared intention of pursuing the project as actual research. Therefore, no issue arose of whether the Claimant was failing to address his own offending before undertaking research into the offending of others or whether the Claimant was distancing himself from his offending and increasing the risk of harm he posed. In those circumstances the basis for the Defendant's decision as outlined in the letter of the 20^th March 2009 was unsustainable. He argued that this proposition was identified in the written grounds by reference to the argument of reasonable expectation.
18. The simple issue as identified by Mr. Field was not clear from the papers in the case. However, he raised it as being the only sensible way in which to view the matter. He did not seek to argue the case other than in that context. That being so, it is necessary to consider what the Defendant believed to be the factual position at the time the decision was made. Whatever that belief was, was it reasonable? If so, was the decision made in fact within the range of reasonable and rational decision making for a public body in the position of the Defendant?
19. The Defendant did not understand TMA02 to be a purely theoretical exercise devised by the Claimant simply for assessment by the Open University of his abilities to prepare a research project. Rather, the Defendant believed that the Claimant intended to carry out the research as set out in TMA02. That is the only proper conclusion to be drawn from the content of the decision letter of the 20^th March 2009. Though the letter is headed "hypothetical research proposal", the substantive reasons given for the decision not to allow TMA02 to be submitted are explicable only in the context of intended research. The discussion during the meeting on the 18^th March 2009 was conducted on that premise.
20. Mr. Field, on behalf of the Claimant, argues that any such belief was mistaken and that there were no reasonable grounds for that mistaken belief. These proceedings are not the forum for deciding in fact what the true purpose of TMA02 was. This court has insufficient evidence to determine that issue. For instance, there is no evidence from the Open University about the system of TMAs in general and their use in developing research projects or about the particular status of TMA02 intended to be submitted by the Claimant. However, it is possible to determine whether the Defendant had reasonable grounds to believe that the project outlined in TMA02 was intended to be taken forward as a piece of actual research. That is because this court has the material on which the Defendant based its decision. Whether the Defendant's belief was mistaken, there can be no doubt that there were ample grounds for the Defendant to reach that view. The Claimant himself – when he told Paula Ratledge that his research would "save lives", when he showed her his proposed questionnaire to be given to those imprisoned for homicide, when he requested information from the files of such prisoners – gave support to such belief. The matters raised in the course of the meeting by Gordon Jackson – in particular, the Claimant's reported desire to move closer to the research team in Cardiff - did likewise. The decision was taken before any letter before action so that the content thereof cannot be of direct relevance to the basis of the Defendant's belief. Equally, it is notable that the letter before action of the 24^th March 2009 does not begin to suggest that TMA02 was no more than an assessment exercise. Rather, it states "the content and nature of the research could prove extremely useful to those involved in law enforcement and in the protection of a vulnerable demographic".
21. It follows that the decision taken by the Defendant must be judged in the light of the reasonably held belief that the Claimant's TMA02 was intended as a preliminary step in a research project of the kind outlined in the document and not as a pure assessment exercise. On the available evidence the Claimant himself had that intention.
22. In those circumstances any reasonable Governor of a prison establishment would have been entitled to decide that it would not be appropriate to allow the Claimant to submit TMA02 on the basis that it would not be appropriate for the Claimant to conduct the type of research he outlined i.e. questionnaires to those convicted of homicide in a domestic setting and semi-structured interviews with such prisoners. TMA02 assumes that those to be questioned – whether by questionnaire or in interview – will be serving prisoners. By definition any life prisoner who remains in prison either is still serving that part of the sentence relating to punishment and retribution or has yet to be considered safe for release by the Parole Board. Those prisoners will be the subject of highly structured programmes designed to address their offending and their future risk. There is no sensible prospect that another serving life prisoner could be given access to those prisoners in the way set out in TMA02. To do so inevitably would interfere with those structured programmes and very possibly endanger the proper progress of the programmes. That in turn would endanger public safety and the proper administration of the prison system for life prisoners.
23. In fact the Defendant did not reach its decision on that basis. It reached the decision substantially on the ground that the research would interfere with the Claimant's own offending behaviour programme. It relied upon the view of a Dr. Hannah Callum who asserted that the Claimant should complete offence specific treatment prior to completing research into domestic violence. Dr. Callum's view was limited in its value because she had not seen TMA02 and she had not seen or assessed the Claimant. It also relied on the adverse view that the public and victims would take of the Claimant's research.
24. It is not necessary to decide whether, assuming a reasonable belief that TMA02 was to be progressed to actual research, the basis of the Defendant's decision was reasonable, rational and proportionate. There were ample grounds (as set out in paragraph 22 above) for the Defendant reasonably, rationally and proportionately to decide that the Claimant should not be permitted to submit TMA02. In the course of the hearing I asked Mr. Field whether, in the event that I were to find that there were proper reasons for the decision reached albeit not those relied on by the Defendant, it would be nonetheless open to the Claimant to impugn the decision and to obtain the relief sought. Mr. Field candidly accepted that it would not.
25. In those circumstances it would not be appropriate to grant any relief by way of judicial review of the Defendant's decision and the claim must fail.
26. It may be that the Claimant will seek a further decision from the Defendant (or the Governor of the prison in which he now is being held) to allow him to submit TMA02 on the basis that TMA02 amounts to an assessment exercise and no more. Were he to do so, he would have to supply the relevant Governor with very clear evidence that that was the sole purpose of submitting the document and that any actual research project would not involve the type of investigative process set out in TMA02. In that event the relevant Governor would have to assess the matter afresh. In the course of these proceedings Mr. Hare on behalf of the Defendant submitted that even the submission of TMA02 as a pure assessment exercise properly could be refused on the basis of public perception. The argument was that the public would perceive that the Claimant was being given credit for his work when that work was inappropriate. I cannot pass final judgment on that argument since it does not arise on the factual situation as I have found it to be. Had it done so, I would have rejected it and I would have held that refusal to submit an assessment exercise that already had been completed with apparent approval was unreasonable and irrational.