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
		Handed Down On 26 May 2010

His Honour Judge Langan QC:

Introduction

1. The claimant is a sex offender and is serving a custodial sentence in Her Majesty's Prison Littlehey. He is at present in Category C. The defendant is the Governor of the prison and has on three successive occasions refused to recategorise the claimant to Category D, which would entail his being moved to open conditions. These three refusals are challenged by the claimant. The basis of the decisions is the defendant's view that the claimant has not demonstrated the reduction in risk which is required to justify a downward recategorisation. The claimant denies his guilt of the offences for which he was convicted and is therefore excluded from participation in appropriate treatment programmes for sex offenders. Shortly stated, the claimant's case is that undue weight has been attached to this non-participation and that no, or too little, attention has been paid to other factors which, on his view, are favourable to his being placed in Category D.
2. On 10 November 2009 I gave permission to apply for judicial review of the first of the decisions which are now the subject of this litigation. The second and third decisions were made in January and February 2010 and, as a result of various orders of the court, the proceedings have been recast so as to enable all three decisions to be considered at a single hearing.

Narrative

3. The claimant is 47 years old. In 2005 he was convicted after a trial of a number of sexual offences, including rape, and on 13 June 2005 he received a sentence of 10 years imprisonment. The offences had been committed between 1992 and 2003. The two victims were young girls, who were the daughters of the claimant's partner, and to whom he was accordingly in the position of a stepfather. There had been no previous history of sexual offending by the claimant.
4. As a long-term prisoner serving a determinate sentence, the claimant will be entitled to be released on licence at the two-thirds point, which he will reach some time during the month of January 2012.
5. The claimant has consistently maintained his innocence, a stance in which he is supported by his partner. As I have already mentioned, the consequence is that he is ineligible to engage in programmes which require acceptance by participants of their responsibility for the offences of which they have been convicted.
6. The claimant arrived at Littlehey on 3 March 2008 as a Category C prisoner. Up to that date, there had been no criticism of his conduct in prison. That remains the case. The claimant was until 4 October 2009 an enhanced prisoner and has had no adjudications during his time in prison. His enhanced status was removed on the date which I have just mentioned because of his non-particpation in offending behaviour work.
7. As a long-term prisoner, the claimant is entitled to reviews of his categorisation every 12 months. The first such review at Littlehey took place in January 2009. The decision was that the claimant should remain in Category C. The claimant challenged this decision through the internal complaints system, but his complaint was rejected on 27 April 2009.
8. After correspondence between the claimant's solicitors and the prison, the claim form was issued on 14 August 2009. Permission to apply for judicial review was initially refused on the papers, but the application was renewed at an oral hearing on 10 November 2009. At that hearing I granted permission, on the basis that it was arguable that the decision of January/April 2009 was based on the single criterion of the claimant's failure to attend courses, without any consideration of any other relevant factors.
9. Following the grant of permission, the defendant sought and obtained a stay of the proceedings in order that a fresh review of the claimant's categorisation might take place.
10. The review took place on 7 January 2010 and the claimant was informed of the decision on the following day, 8 January. He was once again told that he was to remain in Category C:

"I have viewed all the documentation and have considered this thoroughly. You are in denial of the index offence for which you were convicted and have outstanding work on your sentence plan, and therefore you have not significantly reduced your risk of re-offending and that risk remains high, therefore at this time you should remain a Cat C prisoner. To reduce your risk you need to complete your sentence plan targets which include SOTP and victim awareness."

11. On 3 February 2010 His Honour Judge Kaye QC gave permission to amend the claim form, so as to include this second decision within the judicial review.
12. Following the grant of permission to amend, the defendant carried out a further review of the claimant's categorisation. Once more, the decision, which was made on 12 February 2010, was to the same effect as the earlier decisions. In fairness to both parties, it is necessary for me to set out the risk assessment, reasons for decision, and notification of decision in full.
13. The risk assessment was in the following terms:

"Mr Osborne attended the board to give his personal representations, also available were the representations from Mr Osborne's solicitors (Chivers) and his offender supervisor Miss Bush. Mr Osborne complies with the establishment regime in terms of work. He has had no adjudications against him and his behaviour is of a good standard. He has completed numerous educational courses passing a number of exams which will assist him in his reintegration into the community, however he has not completed any offence related work of which there is sex offender treatment programme and victim awareness still outstanding on his sentence plan.

His OASYs states he apportions the blame on his victims and is not able to understand other people's views, his risk to children remains high. When asked if he felt he had reduced his risk sufficiently to warrant Cat D he stated that he felt that he had in some ways, with the educational work and that he had been on bail and shown that he can accept and work to licence conditions, he also stated that he realised that to reduce the risk further he would need to complete courses including SOTP but as he is maintaining his innocence he is not able to do them, but would consider a community course if it was as a third party person and not actually as a guilty person.

Having taken into account all the information from his wing history, F2050, solicitors' representations and the discussion during the board I have assessed that even though his behaviour is good and he has completed educational courses there is still a significant outstanding risk to children which outweighs the reduction from his good behaviour and educational progress and he should therefore remain a Cat C prisoner."

14. The reasons for decision were these:

"Mr Osborne has outstanding behaviour work to complete with regards to the sex offender treatment programme and victim awareness, both of which can be completed at Littlehey. He has to his credit completed a number of educational courses which should help with resettlement and his behaviour and compliance with the establishment regime is good, however as no offence related work has been completed and his current OASYs identifies him as a high risk to children his risk of re-offending has not been significantly reduced and therefore he should remain a Cat C prisoner."

15. The notification of decision was:

"Mr Osborne, although you conform to the establishment regime, you have had no adjudications and your behaviour is good, you have not completed the outstanding offending behaviour work identified in your sentence plan and your risk remains high therefore at this time you should remain a Cat C prisoner. If you wish to progress to Cat D conditions you must understand that there must be clear evidence that you have reduced your risk of re-offending rather than just using your time constructively."

16. On 7 May 2010 His Honour Judge Grenfell gave permission for the claim to be further amended by the inclusion of a challenge to this third decision.

Discussion

17. Mr Kramer, counsel for the defendant, submitted that the court should confine itself to a review of the third decision, as this had overtaken the first and second decisions. I agree with that approach. The first and second decisions remain relevant as matters of history and background, but it seems to me that the court need not concern itself with the question whether, if either decision stood alone, it would survive scrutiny by way of judicial review.
18. The relevant provisions of PSO/0900 and PSI 3/2009 are familiar to the court and to practitioners in the field of prison law, but I must nonetheless set out a few important passages.
19. The principles by which adult male prisoners are to be recategorised are to be found in Chapter 2 of PSO/0900. By paragraph 2.1.1

"By the time a prisoner is eligible for review, staff will know much more about him than when he was first categorised by OCA staff at the local prison. However, while his circumstances may have changed, the matters which are relevant to a recategorisation are the same as those for an initial categorisation. The aim of recategorisation is to use this information to establish whether there has been any clear change in the risk the prisoner poses. More specifically, staff must answer two important questions: (1), is the prisoner more or less of a risk to the public than when he was first categorised, and (2), is he now more or less likely to escape or abscond. It is not necessary to prove continued or increased risk in both areas to retain the prisoner in his present category or upgrade him. There will be prisoners who pose less risk of escape than they once did, but who present such a serious threat to public safety that we cannot accept even the smallest chance that they will abscond or escape."

Then by paragraph 2.1.2:

"Having balanced the risk of the prisoner escaping or absconding against the likely risk to the public were he to do so, governors (or equivalent grades in contracted out establishments) must decide, provisionally, whether the prisoner should remain in his current category or downgraded. Where the provisional decision is to retain the current category or to downgrade it the governor must consider whether any control factors point to a different categorisation."

20. PSI 03/2009 also deals with principles of recategorisation. Paragraph 8.1 says this:

"The purpose of the recategorisation process is to determine whether, and to what extent, the risks a prisoner presented at his or her last review have changed and to ensure that the prisoner continues to be held in the most appropriate conditions of security.

Recategorisation must be based on:

• Evidence of a clear change in the level of risk posed by the      prisoner in terms of escape or abscond and/or the risk to the public in the event of an escape or abscond.

• New or additional information, which impacts on the original categorisation decision.

• Concern that the previous recategorisation decision is unsound. There must be corroborative evidence to support this view.

• Control issues…

Paragraph 8.2 states that in reviewing a prisoner's category, "it is essential to look at the reasons why at his or her last review the prisoner was placed in the current security category." It is only then that it is possible to determine whether circumstances have changed so as to warrant a change in category.

21. Paragraph 13.1 states that the OASYs assessment should be used to assess or review the risk of harm which a prisoner presents to the public. The paragraph goes on to set out other relevant information which is to be considered. This includes behaviour: but

"Good, compliant behaviour does not, in itself, indicate that the prisoner poses less risk either of escape or abscond or risk of harm to the public or risk to the good order of the prison and is not sufficient justification to downgrade a prisoner. There must be additional sound evidence that the prisoner's good behaviour is representative of a change in attitude and an associated reduction in the risks that were evidenced at the last categorisation review.

22. Paragraph 14 deals specifically with recategorisation to Category D. In the case of a long-term prisoner governors "will need to consider whether the prisoner has made sufficient positive and successful efforts to reduce risk levels and that the benefits he or she would gain from allocation to open prison are worthwhile at this particular stage in sentence." In general, long-term prisoners should not be allocated to open conditions "until they have served a sufficient proportion of their sentence in a closed prison to enable them to settle into their sentence and to access any offending behaviour programmes identified as essential to the risk reduction process."
23. Both counsel referred at length to the claimant's most recent OASYs assessment. This was completed on 17 July 2009. It runs to some 41 pages and is not particularly easy to summarise, but I shall try to pick out the main points. Before I do so I should mention one matter which, understandably, was heavily relied upon by Ms Arshad, counsel for the claimant. The claimant's overall score on the assessment was 29/168. That is, in itself, a low figure: and significantly, in Ms Arshad's submission, showed a reduction from the last OASys assessment: this had taken place on 22 April 2009, when the score was 40/168.
24. In Section 1 - Offending Information, the risk of re-imprisonment within two years of release was assessed as low.
25. In Section 2 - Analysis of Offences, extensive reference was made to the claimant's denial of guilt. On "Analysis of offence issues linked to risk of serious harm, risks to the individual & other risks", the "Yes" answer was selected.
26. In Section 6 – Relationships, reference was made to the claimant's ongoing relationship with his partner, who is, of course, the mother of the two victims. The "Yes" answer was selected for both "Relationship issues linked to risk of serious harm, risks to the individual and other risks" and "Relationship issues linked to offending behaviour."
27. In Section 7 – Lifestyle and associates, "significant problems" were indicated in relation to "manipulative, predatory lifestyle." The supporting evidence related to the breach of trust inherent in the offending behaviour.
28. In Section 11 – Thinking and Behaviour, "significant problems" in understanding other people's views were noted. The observations in this section referred to the inability of the claimant to undertake offending-related work in the light of his continuing denial.
29. In Section 12 - Attitudes, and for similar reasons, "significant problems" were noted in relation to "attitude to community/society" and understanding of the motivation for offending.
30. In the summary section dealing with risk of serious harm, "risk in prison" was assessed as low in all categories; "risk in community" was assessed as high in relation to children and low in relation to all other categories (public, known adults, staff).
31. At Section R4.1, it was stated that there were no current concerns as to risk of escape/abscond.
32. Finally, there is Section R.10, where risk is summarised. The persons at risk are identified as "predominantly pre-pubescent females" and the nature of the risk as sexual abuse. The risk is "likely to be greatest" when the claimant "is placed in a position as a carer for children or if he is in a situation which would give him access to a child or potentially a group of children." The "factors likely to reduce the risk" are acceptance of guilt and completion of the SOTP and victim awareness work. Again the risk to children in the community is recorded as high, the criterion for high risk being "identifiable indicators of risk of serious harm. The potential event could happen at any time and the impact would be serious."
33. After this regrettably, but I think necessarily, lengthy introduction, I now turn to the submissions of counsel.
34. Although Ms Arshad put the claimant's case in a variety of ways in her amended grounds, written submissions, and oral argument, I think that what she said can fairly be summarised under two headings, which are really opposite side of the same coin. First, the defendant wrongly regarded a single factor, namely the claimant's inability to enrol on appropriate courses, as by itself conclusive of the question of recategorisation. Secondly, the defendant attached no, or no sufficient weight, to many factors which were favourable to the claimant, such as his good conduct in prison, his low OASys score, and the reduction in that score from 40/168 to 29/168 between April and July 2009.
35. I confess to having considerable difficulty with these submissions.
36. As passages which I quoted earlier in this judgment demonstrate, the material relating to the decision of 12 February 2010 does, on its face, refer to many factors apart from the failure to attend courses. That material suggests to the reader that the defendant adopted what might be called a holistic rather than a tunnel-vision approach. As the quotations earlier in this judgment show, the defendant considered a wide range of factors. It may be that he did so in recognition of the fact that his earlier decisions might be the subject of justifiable criticism. But I see no reason to doubt the genuineness of the consideration which was given to recategorisation in February 2010, or to regard the way in which the decision was expressed as window-dressing which conceals the application of a fixed policy by which no sex offender who is in denial will ever be recategorised to Category D at Littlehey.
37. Ms Arshad then says that there are these flaws in the decision: a failure to refer at all to the low risk of escape, and a conflation of risk of re-offending and risk of harm in the event of re-offending, which are separate concepts. Again, I have problems with this approach. Risk of harm was central to the decision, and it is true that such harm would occur only if the claimant both absconded and thereafter entered into a relationship which enabled him to groom children for abuse. But against this, it has to be remembered that what is being considered is, not the possibility of an escape which would require some ingenuity, but the possibility of simply walking out of an open prison. Thereafter, a relationship might be formed in circumstances in which the claimant would be unlawfully at large and not bound by the manifold controls to which a sex offender is subject after release on licence.
38. Then one comes on to the central question, of the claimant's inability to attend courses. It would, of course, be wrong for the defendant to retain the claimant in Category C simply because the claimant has not attended appropriate courses or because he is in denial of his offences. Denial and a consequent inability to attend courses are relevant only to the extent that it is usually fundamental to demonstrating reduction in risk that a sex offender accepts responsibility for what has happened in the past and takes concrete steps to address his future conduct. But if he will do neither, he puts himself in a situation in which it is difficult, indeed practically impossible, for him to obtain a downward recategorisation. I refer to what is by now the well-known discussion of the subject of denial by Elias J in The Queen (on the application of Roberts) v Secretary of State for the Home Department [2004] EWHC 679 (Admin) at paragraphs 30 to 47.
39. I put to Ms Arshad, I hope not unfairly, the question: what has her client in fact done to demonstrate a reduction in risk? She pointed to the reduction in his OASys score and to his good behaviour in custody. The reduction in score is, however, a small matter, and I do not think that failure to mention it is a basis on which an otherwise comprehensive decision could be overturned. As to the claimant's behaviour, there is, as is made clear in the PSI from which I quoted earlier, nothing to be derived from good behaviour by itself. It is material only in so far as it shows a relevant change of attitude, and that is not something which can be gauged from the (praiseworthy) behaviour of the claimant in this case.
40. Ms Arshad said that there was no indication that the defendant had taken the claimant's existing categorisation and the reasons for that categorisation into account as his starting-point. This is a fair criticism but it cannot possibly, in my judgment, be sufficient to undermine the decision.
41. Ms Arshad also said that the approach adopted by the defendant was one which might have been appropriate for a decision-maker who was considering whether the claimant should be released on licence, but was not apt for a consideration of the category in which he should be placed during his incarceration. This criticism, by contrast that which I have just considered, is misplaced. The risk which the defendant was considering was the risk posed by an assumed absconder: and that, as I have pointed out, is actually greater than the risk of an offender who is subject to registration and other controls.

Disposal

42. It follows from what I have said that the claim will be dismissed. I must not, however, leave the case without thanking both counsel for their helpful submissions. In particular, I recognise the difficulties which Ms Arshad had to face: after the decision of February 2010 had been made, she was inevitably faced with an uphill climb, which she tackled with commendable skill.