England and Wales High Court (Administrative Court) Decisions

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

		Sitting at: Leeds Combined Court 1 Oxford Row Leeds West Yorkshire LS1 3BG
		9th June 2010

JUDGE BEHRENS:

1. There are before the court two matters. Both relate to Mr John Jones; both relate to his categorisation as a category B prisoner at Full Sutton; both relate to judicial reviews of the decision of the Governor to maintain Mr Jones as Category B prisoner. The position is that on 25 November 2009, the Governor made a decision to retain Mr Jones as a Category B prisoner, and following that decision judicial review proceedings were issued. There was an initial refusal of permission by Foskett J on the papers, but at an oral renewal hearing HHJ Langan QC on 8 March 2010 granted permission. This is therefore a full judicial review of the decision dated 25 November 2009.
2. On 25 March 2010 the Governor reconsidered Mr Jones's position; he reconsidered it because Mr Jones is entitled to have a reconsideration every six months, and it was six months from the September decision. On reconsideration the Governor has retained the category B status. Mr Jones seeks judicial review of that decision.
3. No permission has been granted in relation to the challenge to the March decision. It has not been considered on the papers because HHJ Kaye QC directed that the matter should be dealt with today.
4. It seems to me, on reflection, that the crucial decision now is the decision of 25 March 2010. In the light of HHJ Langan's view is to grant in relation to the 25 March decision. I therefore propose to grant permission.
5. Mr Jones was born n 15 March 1965; so he is now 56 years old. On 22 February 2007 he was convicted as a result of a plea of guilty of an offence of rape, the victim being his own son, who was then aged between 11 and 14. As I understand it, there were a number of offences involved; he says he pleaded guilty on the advice of his counsel. It is important to note that notwithstanding the plea of guilty, he now denies that offence, and he, as I understand it, is attempting to appeal his conviction; no details have been provided of the progress of his appeal.
6. As a result of the conviction, he was sentenced to eight years in prison. Throughout his term of imprisonment, he has been categorised as Category B. It is plain from the papers that are before me that there is no complaint about his behaviour in prison. He has attended a number of courses in 2007 and 2008, including a drinking awareness and reduction medication course, an anger management course, and a victim impact course. He has not attended a sex offender training programme. One of the features of a sex offender training programme is that people on that course have to admit their guilt, so that they can address the issues that arise. If, therefore, they do not acknowledge their guilt, they are ineligible to go on that programme.
7. There have in fact been three relevant decisions relating to Mr Jones's recategorisation.
8. I have been referred to a document was compiled for meeting on 18 March 2009. The document appears to have been compiled partly on 28 January 2009 and partly on later dates. It was finally signed by the Wing Manager on 27 March 2009, the date of one of the decisions. Amongst the matters referred to in the document is an OASys report or assessment of 32 out of 168. I am told that the assessment is based on a computer algorithm, taking into account a number of factors and assessing the risk of reoffending.
9. Mr Jones's OASys score shows that there is a low risk of reoffending. It also includes a matrix of risk of harm to others. In most categories this is also low; for example, the risk to the public, known adults, staff and prisoners, both in custody and the community are assessed at low, however there is assessed to be a high risk of harm to children in the community. That is summarised in the following words:

"Mr Jones poses a high risk of harm to children. The risk would be heightened if he were to return to live with his wife and children."

So far as Mr Jones's behaviour is concerned, it records:

"I am informed that Mr Jones's behaviour in prison is very good and he interacts appropriately with those around him. He is employed in the Braille workshop and under the Incentives and Earned Privileges (IEP) scheme he is an Enhanced level prisoner."

10. The board recommendation and summary extends to six paragraphs. It is not my intention to set it in full. It notes that Mr Jones is in denial, and pleaded guilty on the advice of his barrister and solicitor. It notes the courses that Mr Jones attended prior to arriving at Full Sutton. It makes a comment on the Sexual Offender Training Programme as follows:

"SOTP had been set last year as a Short Term Objective. Mr Jones said he had applied for SOTP last year but had been told that he was unsuitable due to his current stance;"

It goes on to say that although Mr Jones had completed a number of courses, he still had not addressed any issues with regard to his index offence, and therefore had not reduced his risk to the public:

"A progressive move to a Category C prison at this time is not an option."

11. That was followed by a decision. The precise wording of the decision is not in the bundle, but has helpfully been set out in the skeleton argument of Mr Thomann on behalf of the defendant, and it is accepted that this is what the decision read:

Mr Jones denies his sexual offending, and therefore is not suitable to complete SOTP until he addresses this. There is insufficient reduction in risk to recommend a progressive move; he is to remain in the current security category and conditions.

12. The decisionprompted an application by Mr Jones for judicial review. That judicial review was never adjudicated upon, because the Governor agreed to reconsider the decision. Mr Thomann in his skeleton argument says that, as drafted, the decision arguably amounted to a decision not to recategorise the claimant solely on the ground that he denied his guilt. In his oral submissions, Mr Thomann did not resile from that submission, but made the point that it might have been possible to save the decision because it included a reference both to the reduction in risk and to the SOTP. However, the proceedings were copmpromised and it was not necessary to argue the point.
13. Pursuant to the compromise, a new decision was made on 7 September 2009, and later confirmed on 25 November 2009. Mr Jones was to remain in Category B. and included:

"Whilst I acknowledge that Mr Jones's custodial behaviour has been good, this alone is not enough to demonstrate a reduction in risk.

Appropriate OPBs are available at Full Sutton. He should remain here on his current security category."

14. There was a further review as a result of complaint made by Mr Jones which resulted in the confrmation made on 25 November 2009 "that there was no significant change since the original categorisation as a Category B, or evidence to demonstrate a reduction of risk";
15. It was the decision of 25^th November 2009 rather than the decision on 7 September 2009 which gave rise to these judicial review proceedings. It was accordingly that decision which gave rise to the initial refusal by Foskett J, and the granting of permission by HHJ Langan in March of this year.
16. Although the decision of 25^th March 2010 is not before the Court it is agreed between the parties that it was in the following terms:

Mr Jones is still in denial of the offence that he was convicted of in court. The appropriate offending behaviour courses are available here at Full Sutton, but to date he has not completed any. There is little to suggest any reduction in the risk he poses, so I recommend that he remains on his current security category and conditions.

17. One of the points made by Mr Elliot is the similarity of the reasoning of the Governor or the decision maker in relation to each of the three decisions. He submits that as the Governor accepted that his first decision was open to challenge and as there is very little difference between that decision and the instant two decisions the two later decisions are also flawed.
18. There is not very much difference between the parties in relation to the relevant law. There are four categories of prisoners. Category B prisoners are prisoners for whom the very highest conditions of security are not necessary, but for whom escape must be made very difficult. Under paragraph 1.2.3 of the relevant Prison Service Order that prisoners must be placed in the lowest security category consistent with the needs of security and control. Prisoners are entitled to regular reviews of categorisation, and that the claimant is now entitled to six-monthly recategorisation review cycles.
19. Central to this case is the effect of denial by Mr Jones. I have very helpfully been referred to two cases on the question of denial, a decision of Laws J in R v SSHD (ex p Hepworth) [1997] EWCA (Admin) 324, and a decision of Elias J in Roberts v the Secretary of State for Justice [2009] EWHC 2321 (Admin). In Hepworth Laws J set out a summary of the essential approach to be derived from the cases, and he did so by way of four propositions. Laws J was dealing with a case involving parole, but it is I think common ground that similar principles apply to categorisation. However it has to be remembered that the risk involved in recategorisation is slightly different from the risk involved in parole. In a parole case a prisoner is potentially at liberty, whereas in a categorisation case he is still in custody. Returning to Laws J's propositions:

"(1) The Parole Board must assume the prisoner's guilt of the offence or offences of which he has been convicted.

(2) The Board's first duty is to assess the risk to the public that the prisoner might commit further offences if he is paroled.

(3) It is therefore unlawful for the Board to deny a recommendation for parole on the ground only that the prisoner continues to deny his guilt.

(4) But in some cases, particularly cases of serious persistent violent or sexual crime, a continued denial of guilt will almost inevitably mean that the risk posed by the prisoner to the public or a section of the public if he is paroled either remains high or, at least, cannot be objectively assessed. In such cases the Board is entitled (perhaps obliged) to deny a recommendation."

Laws J then went on to consider those four matters. He discussed the fourth proposition thus:

"The fourth proposition which I have earlier set out is important in this context. It shows that there will be cases where the Board may properly give decisive weight to a continued denial. So much was explicitly recognised by Stuart-Smith LJ in Zulfikar No 1. The cases of Hepworth and Winfield, being concerned with very serious and repeated sexual crime, are examples. The very gravity of the original offences must mean that the starting-point is one of unacceptable future risk. It could only be dispelled by some material to show that the offender has changed, is motivated to avoid such conduct if and when he is released. But if he cannot or will not confront his guilt and so undertake a programme such as SOTP, then absent some other special circumstance no such material will be available. Consideration by the Board of the question whether he is guilty or not is an illegitimate route to the provision of any such material, for reasons I have given."

20. In Roberts Elias J was considering the recategorisation of Class A prisoners. He drew attention to the relevance of denial in a passage which to my mind is of considerable assistance. It is helpfully quoted in Mr Thomann's skeleton argument. He observed, firstly, that similar principles apply to categorisation as do for parole, because in both cases it is not the denial which is relevant, but the effect which this has on the ability of the prisoner to come to terms with his offending behaviour, and to demonstrate the necessary reduction in risk. This must equally be so in the categorisation process. He goes on in paragraph 39:

"39. There is a very real difficulty facing the review team in cases of this nature. The guilt of the prisoner must be assumed. That is what the review team properly did here. The review team must then assess the nature of the risk in the event of an escape. Where the index offences are so grave, as they will inevitably be in Category A cases, the review team can justifiably require cogent evidence that the risk has diminished.

40. That evidence will, in the normal way, be most cogently demonstrated by the prisoner participating in courses and programmes which are directed to the specific offences, so that there can be some self-awareness into the gravity and consequences of his conduct. However, it is a condition of a number of these courses that the prisoner must admit his guilt. That is so, I am informed, for the Sex Offences Treatment course, the CALM course … and the CSCP course ... By not participating in such courses or programmes the prisoner inevitably makes the task of the review team more difficult, and in some cases practically impossible.

41. It must be recognised that this compounds the injustice for anyone who has suffered the grave misfortune to be wrongly convicted of such terrible crimes, and there will inevitably be such people. It puts pressure on the innocent to admit guilt in order to facilitate release, or, alternatively, to serve a longer sentence than they would have had to do had they committed the crime and felt properly able to admit guilt. But that seems to me to be inevitable, the system cannot operate unless the verdict of the jury is respected.

42. Moreover, on very, very, many more occasions defendants deny guilt for offences which they have in fact committed, for a whole variety of reasons. Given that the danger must be presumed from the nature of the index offence, it is plainly a proper requirement that there should be cogent evidence in the diminution of risk if the safety of the public is to be secured. No doubt to those in denial the recitation by a review team that being in denial does not of itself preclude re-categorisation may appear to have something like a mantra-like quality. There is no doubt that if they disqualify themselves from the courses which address their specific offending, it will be considerably more difficult for them to be able to satisfy the review team that re-categorisation is justified. This is not, however, punishment meted out to them because they have not admitted the offence, but it is because by being in denial they limit -- and in many cases severely limit -- the practical opportunity of demonstrating that the risk has diminished. Indeed, their denial demonstrates that they have not accepted that the risk was ever present. In the circumstances, therefore, I do not consider that the review team can be criticised on this ground."

21. Mr Elliot on behalf of Mr Jones submits that in this case there is an inadmissible reason for refusal of recategorisation. There is in effect here reliance solely on the denial. The denial means that he cannot go on the sex offender course, and therefore it follows, as night follows day, from the denial that he cannot be recategorised; and that, says Mr Elliot, is impermissible. Mr Elliot draws to my attention the assessment of reoffending, which is said to be low; and he says it is therefore plain that the only reason for the refusal to recategorise Mr Jones is the denial. In those circumstances the decisions of the Governor ought to be quashed.
22. Mr Thomann, on the other hand, draws to my attention firstly to the seriousness of the offence. This is an offence against a child; it is a serious sexual offence against a child; it is an offence which was repeated over a period; it is an offence which merited eight years' imprisonment. It is plainly a serious, or indeed -- I think it justifies the description -- a very serious sexual offence. Although it is correct that the risk of offending may have been assessed by a computer or the OASys report as being low, the risk of harm to children in the community has been assessed as high. Mr Jones poses a high risk to children, and that the risk would be heightened if he were to return to live with his wife and children.
23. Mr Elliot submits that the true way of interpreting those two remarks or comments is that the second has to be read subject to the first, that is to say, that there is a low risk of offending, but if he is going to offend, it is likely that the offence will be against children, or indeed his wife and children if he returned to live with them. I have to say that I do not so read those reports. It seems to me that, read together, Mr Jones is assessed as proposing a high risk of harm to children, and the fact that there is a low risk of general offending does not affect that assessment.
24. Mr Elliot showed me another document which came from Mr Davis of the TSP Programmes Department, dated as recently as 12 May 2010, which referred to Mr Jones as being a low risk of reconviction assessment. To my mind, that does not affect the assessment of the risk of harm contained in this document. So it does not seem to me that that it alters the position.
25. It does seem to me that in this case, which involved a serious sex offence, the Governor was entitled to take the view that this was one of those cases within paragraph 4 of Laws LJ's judgment, where there had to be positive evidence of reduction of risk, and in the absence of a sex offender programme he had no material on which to say that there was a reduction of risk. It may well be, as Elias J points out, that this is something of a catch-22 position for Mr Jones; but it is to my mind plain that the Governor here has addressed the real question, the question of reduction of risk. He has said that there is simply insufficient evidence of that reduction or risk, because it simply has not been addressed by the SOTP programme.
26. I understand the frustration that Mr Jones feels about it, because he now denies the offence, having for whatever reason admitted it in the Crown Court. But it does seem to me that the decision of the Governor in this case, both on 25 November 2009 and, indeed, on 25 March 2010, is not one which is susceptible to judicial review.
27. I have dealt at some length with the main ground raised in this application. In the course of his submissions Mr Elliot raised an alternative ground based on a confusion between allocation and categorisation. In my view, there is little or nothing in that submission. There is no evidence here that the Governor has confused allocatocation with categorisation. The fact that he referred to courses being available at Full Sutton does not entitle the court to infer that he was refusing to recategorise because there were courses at Full Sutton, and therefore it was inappropriate to reallocate. It is simply a comment that there are courses available at Full Sutton.
28. In all the circumstances, whilst I have followed HHJ Langan in granting permission, it seems to me that this is a case where both the grounds and the amended grounds are not made out. Accordingly the application for judicial review is refused.

MR ELLIOT: My Lord, I am grateful for that ruling. I do not want you to consider me impertinent in any way, but would you forgive me if I address you on the subject of permission to appeal at this stage?

JUDGE BEHRENS: You are fully entitled to address me on permission to appeal.

MR ELLIOT: The reason --

JUDGE BEHRENS: Except, I suppose -- no, you are fully entitled to address me.

MR ELLIOT: The reason I mention it is, of course, your Lordship's judgment is based in no small part on the risk matrix at page 33.

JUDGE BEHRENS: Yes.

MR ELLIOT: Your Lordship is, of course, is conscious of the fact that this is in the context of a determination as to recategorisation rather than parole. The issue of risk posed by the claimant in the community, it may therefore be felt, either does not apply or only applies in the event of an adverse view being formed as to risk of flight. If I can turn your Lordship's attention to the risk matrix, it deals with the risk of children whilst the claimant remains in custody; that risk is assessed as being low. Of course, even in the event that his substantive application away from this court were to be successful, ie that he were to be afforded a progressive recategorisation, he would remain in custody. It is therefore to be assumed that that risk would remain low, and that is the basis of my concern.

MR THOMANN: If I could just respond, that was actually an aspect that was considered by Elias J in Roberts.

JUDGE BEHRENS: It is the risk of escape. It is what happens when he escapes.

MR THOMANN: And what is simply commented is that when one is carrying out this exercise, one must anticipate that the prisoner may be at large and --

JUDGE BEHRENS: Of course, yes. I think you must try your luck elsewhere.

MR ELLIOT: Very good. Thank you. Could I ask for a detailed assessment under those circumstances, please?

JUDGE BEHRENS: I do not think I can say anything about a detailed assessment; you are entitled to one.

MR THOMANN: And I have no instructions to make any application for costs.

MR ELLIOT: I am grateful.

JUDGE BEHRENS: Yes, thank you very much. So the application is dismissed. Permission to appeal is refused. And there will be a detailed assessment of the claimant's costs pursuant to whatever section, which someone may know, of the Legal Services Act, whatever it is. I am going to, I am afraid, invite you to draw up the order, so you can look up the section.

MR ELLIOT: Very good. Thank you. Does your Lordship require that to be drafted today?

JUDGE BEHRENS: The convenient course is to draft it and to email it after agreeing it with Mr Thomann.

MR ELLIOT: I shall indeed.

JUDGE BEHRENS: And somebody in front of me will give you an email address if you do not already have the email address of the court, which you probably do.

MR ELLIOT: I do, thank you.

JUDGE BEHRENS: I am sure everybody has it. But you will send it to the Administrative Court email address, and it will certainly get to me for approval.

MR ELLIOT: Thank you very much.

JUDGE BEHRENS: And I do not suppose it will take you more than five minutes to look up the relevant provision. Thank you both very much.