QUEEN'S BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| The Queen on the Application of
|- and -
|The Secretary of State for Justice
Ms Kate Olley (instructed by the Treasury Solicitor) for the Defendant
Crown Copyright ©
Judge Anthony Thornton QC:
"Nothing in this rule shall be taken to confer on a prisoner any entitlement to any privilege or to affect any provision in these Rules other than this rule as a result of which any privilege may be forfeited or otherwise lost or a prisoner deprived of association with other prisoners. "
"Criteria for earning and retaining privileges
2.10 The earning and retaining of privileges must relate to the standards of behaviour and performance expected of prisoners. These standards may vary in fine detail between establishments, but overall should be consistent across the whole estate:
2.11 Factors which must be taken into account when making decisions about privilege levels and particular privileges include:
• The prisoner's approach to the sentence and willingness to use their time in custody constructively to reduce re-offending and to lead law-abiding, productive and healthy lives, e. g. through involvement in OASys and sentence planning and the relationship with the personal officer, probation officer, etc
• the prisoner's institutional behaviour, i. e. compliance with rules and routines, and relationships with other prisoner's and staff. Disciplinary offences (where proven) must be taken into account when considering overall patterns of behaviour, and a series of offences or a single major offence may lead to a review of a prisoner's privilege level
• the prisoner's attitude to people outside prison, including family, victims and others they may come into contact with.
Review of privilege level
2.17 Prisoners on standard level may apply to be elevated to enhanced after three months, and at three monthly intervals thereafter. Standard level prisoners who do not apply for elevation, and all those on enhanced level, should be reviewed annually to ensure then- behaviour reflects their incentive level. An earlier review can take place if there is a change in overall behaviour.
2.18 IEP assessments should take account of prisoners' progress in achieving OASys sentence planning objectives. Objectives linked to offending behaviour programmes should initially be based on the offender supervisor's assessment of the prisoner, rather than the prisoner's attendance on a programme. Targets connected with attendance on a programme should only be set with the offender supervisor's advice and should be reviewed annually. These reviews should again take account of the views of the offender supervisor and treatment manager. A prisoner's suitability for offending behaviour programmes does not depend on his or her IEP level, and no decisions about the suitability of a prisoner on basic level should be made until the prisoner has been assessed by the programme's treatment manager.
Loss of privileges
2.19 The pattern of declining behaviour or performance must be judged against the standards specified in the establishment's published criteria. Just as the granting of a particular privilege or movement to a higher privilege level provides an incentive and reward for good behaviour and performance, so the loss of an earned privilege or demotion to a lower level should be seen as the normal consequence of a general deterioration in behaviour and/or performance. A single incident of misbehaviour or short term failure of performance will not automatically result in a change of status, but may be taken into account when considering the prisoner's suitability to be granted or retain privileges.
2.23 Whenever possible the local scheme must allow prisoners on progressive transfer to retain their privilege level. As a minimum, they must be able to retain the national key privileges wherever these are available. Prisoners who are returned from the resettlement estate without a current IEP level must be treated as new receptions and placed on standard level. Prisoners should be advised what is available at their new location on arrival, or before transfer if requested. "
Use of the IEP Scheme in Connection with Mr Hewlett
"Further to your meeting with [the named member of the psychology department] on 8th September 2006, I can confirm that, as you reported, you do not accept responsibility for the sexual offences for which you are convicted, SOTP would not currently be suitable in meeting your needs as this time. Should your stance relating to your offending change in the future we will be happy to assess you for the programme. Please note that the SOTP will remain a sentence planning target due to the nature of your convictions.
We will visit you in 12 months to review your situation.
In the meantime, if you have any further queries or concerns, please contact me in the Psychology Department. "
"There is very little information to hand at this current time. Received Enhanced status at previous establishment but I am unable to ascertain whether Mr Hewlett continues to meet the criteria regarding achieving his sentence plan targets. I will be leaving his IEP regime level alone until it can be reviewed fully with appropriate evidence of conduct and sentence plan. "
"IEP Enhanced Status
I have recently conducted an annual review of your IEP status. I note that you are refusing to undertake offence related work. The expectation is that you fully agree with your sentence plan and take responsibility for the offences that you have been convicted of thereby participating constructively in addressing your offending behaviour.
The IEP Board cannot continue to support Enhanced status. Therefore, your IEP level will be reset at Standard level unless and until you are able to demonstrate that you are committed to addressing your offending behaviour. "
(1) Mr Hewlett's circumstances had not changed since being granted Enhanced status in 2000.
(2) He had received no warning of concerns about his IEP status, the views of relevant prison officers who were familiar with his progress were not sought or taken into account and he had had no warning of, or opportunity to address, the IEP review.
(3) His behaviour had been consistently good, he had been granted IEP status notwithstanding his denial of responsibility and he had undertaken intensive one to one counselling work which had addressed many of the issued covered by the SOTP.
(4) The principles identified in the Oyston and Hepworth cases should apply to any consideration of the downgrading of a prisoner's IEP status. This principle was stated to be that IEP status should not be removed solely on the basis that a prisoner has not completed offence specific work because of his assessed unsuitability as a result of his denial of responsibility for and his maintaining his innocence of the index offences.
(5) In consequence, the decision was unreasonable, procedurally flawed and irrational and should be reversed.
"... I have held discussions with [the Principal Officer concerned] seeking his reasons for concluding why Mr Hewlett's IEP position should be altered.
Having examined Mr Hewlett's wing file and taken advice from our Offender Manager Unit and Psychology department, I am satisfied with Mr Sailor's decision.
The PSO and IEP has numerous references to prisoners complying with their sentence planning targets and attending Offending Behaviour Programmes to reduce the risk of re-offending. As Mr Hewlett is in denial of his index offence and is not an appellant, the relevant course work cannot be completed.
The Prison Service is obliged to treat all in our care with equality and we feel that our IEP Scheme reflects this. One of the national aims of our scheme clearly states: 'to encourage sentenced prisoners to engage in OASys and sentence planning and benefit from activities designed to reduce re-offending.'
The decision to place Mr Hewlett on Standard was based on the above...."
Denial of Guilt and Responsibility by Sex Offenders
(1) The Prison Service must accept the verdict of the courts and thus convicted prisoners have to be treated for all purposes as being guilty of the offence (subject to some allowance for those still actively pursuing a relevant appeal).
(2) A court ruling in 2001 (the Potter case), was robust. The ruling was to the effect that it was reasonable for the Prison Service to expect prisoners to address their offending and to offer incentives for them to do so. The prison service regards it as right to encourage sex offenders to undertake the SOTP and in doing so must recognise that it is often an arduous experience for them.
(3) The Standard level is the norm for IEP schemes. Some deniers can be granted the privilege of Enhanced status but it is possible subsequently to lose that status. This is not punishment for their denial.
(4) A prisoner whose risk factors can be addressed by SOTP is suitable for that programme but if the convicted sex offender denies responsibility, he is not ready for that programme. In such cases, interim targets can be set with the objective of helping the prisoner to get ready, particularly be removing the barriers to treatment, particularly that of denial.
(1) It would take an exceptionally strong case to justify the court in judicially reviewing the grant or the refusal to grant a particular level of privilege in an IEP scheme. Such a grant is an executive decision arising wholly in the context of internal prison management (Hepworth, Potter and Green).
(2) The court would consider intervening if a particular grant has been refused in circumstances amounting to an obvious departure from the principles of unfairness (Potter).
(3) It is not unfair to base the decision to refuse to grant a particular level of privilege on the denial by a sex offender of responsibility or guilt and the corollary that he remains unsuitable to undertake the SOTP (Potter and Green).
(4) There is no applicable principal that a prisoner should not be denied an IEP advantage because he is a denier. Thus, the Oyston principal, to the effect that denial of guilt does not of itself preclude release is not applicable to enable a sex offender denier to override a denial of an IEP privilege because of that denial (Green).
"The IEP co-ordinator will arrange for you to attend the board in mid April."
In fact, the review was conducted in a different manner and to a different timetable. This change was undoubtedly precipitated by Mr Hewlett's solicitor informing HMP Wymott that they wished to submit representations. These detailed and thorough representations were sent to HMP Wymott and were considered by the Residential Manager who, according to his decision letter, also held discussions with a different Prison Officer "seeking his reasons for concluding why Mr Hewlett's IEP position should be altered". He also reviewed Mr Hewlett's file and consulted with the Offender Management Unit and the Psychology department. He did not speak to Mr Hewlett. The result of this consultation was that the originally proposed appeal hearing by the IEP Board attended by Mr Hewlett was transformed into a fresh review by the Residential Manager who took account of all relevant available material and evidence save for hearing directly from Mr Hewlett. He did have, instead, the detailed submissions submitted on Mr Hewlett's behalf which he also took account of. However, this was not the procedure that Mr Hewlett had been informed would be adopted for the appeal review of the procedurally flawed initial decision.
(1) The IEP review was an annual review undertaken in a new establishment and in accordance with the criteria and guidelines provided by PO 4000 and the Departmental guidance concerning deniers who have been provided with a sentence plan objective of undertaking a sex offender programmes contained in the circular letter dated February 2008 sent to prison governors.
(2) The IEP review was concerned to ensure that Mr Hewlett, as a denier and as one who refused to undertake and was thereby unsuitable for a required SOTP, was treated fairly so far as IEP privileges were concerned and that that treatment was fair and consistent with the relevant IEP treatment of similar prisoners in HMP Wymott.
(3) No decision was taken at the February 2007 review because the decision-makers were concerned to obtain full details so as to see whether Mr Hewlett continued to meet the criteria with regard to meeting his outstanding SOTP sentence planning target.
(4) Mr Hewlett continued to deny responsibility for the index offences with a consequent refusal and inability to complete his sentence plan objective of completing the SOTP. This objective was considered necessary to enable him to reduce his risk of re-offending.
These reasons, albeit not conveyed with the clarity and cogency that would have been desirable, are nonetheless sufficient to comply with the statutory duty to provide reasons for the downgrading or adverse decision taken in Mr Hewlett's case.
"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 on 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... 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. In the instant cases, this process can be observed. "
"It is equally clear from the evidence that was before the court in the cases before Moses J, that there are circumstances in which even denials may be overridden to enable an enhanced status to be granted. That will depend upon the individual circumstances of a particular case. But I have no doubt in the circumstances of this case that Mr Jarvis was entitled to regard the failure to attend the course as fatal to his application. "
Note 10 R (on the application of Lowe v Governor of Liverpool Prison  EWHC 2167 (Admin), HH Judge Michael Kay QC. [Back]
Note 10 R (on the application of Lowe v Governor of Liverpool Prison  EWHC 2167 (Admin), HH Judge Michael Kay QC. [Back]