QUEEN'S BENCH DIVISION
B e f o r e :
|The Queen on the application of|
|- v -|
|GOVERNOR OF HER MAJESTY'S PRISON LEWES|
Wordwave International Ltd (a Merrill Communications Company)
190 Fleet Street, London EC4
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(Official Shorthand Writers to the Court)
Miss Rosemary Davidson (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
Crown Copyright ©
MR JUSTICE BURNETT:
"Fear of scrutiny by other people leading to avoidance of social situations. More pervasive social phobias are usually associated with low self-esteem and fear of criticism. They may present as a complaint of blushing, hand-tremor, nausea or urgency of micturition, the patient sometimes being convinced that one of the secondary manifestations of their anxiety is the primary problem. Symptoms may progress to panic attacks."
"Subject to subsections (2) to (4) below, the Secretary of State may:
(a) release on licence under this section a fixed-term prisoner other than an intermittent custody prisoner at any time during the period of 135 days, ending on the day on which the prisoner will have served the requisite custody period."
The requisite custody period in the claimant's case is one-half of the three year sentence imposed in the Crown Court. None of the exceptions to the exercise of this power, set out in subsections (2) to (4) applies to the claimant. These powers had their origins in earlier release schemes dating back to the late 1990s.
"33. A decision that there are exceptional reasons to release a prisoner on HDC, who would otherwise be presumed unsuitable, must only be taken by the Governing Governor, subject to the normal risk assessment procedures. The Home Secretary has made it clear that the reasons for release in these circumstances must be exceptional. Exceptional reasons will not include the level of risk the offender poses. Prisoners presumed unsuitable may indeed be judged as presenting a low risk of re-offending or of breach. It is likely that only a very few 'presumed unsuitable' prisoners, nationally, will be released on HDC. It is impossible to give guidance on what will constitute an exceptional reason to release because such cases will be, by definition, exceptional. As a rule of thumb, such cases will stand out.
34. There will be no need to refer these exceptional cases to HQ for approval. The decision rests with the Governing Governor. However, details of any such cases must be sent to the HQ policy team with reasons why release was granted. The HQ policy team will be available for advice if necessary."
(1) there was to be a risk assessment;
(2) a low risk of re-offending was not itself sufficient to find exceptional circumstances;
(3) very few prisoners presumed unsuitable for release would in fact be released on home detention curfew;
(4) an exceptional case would stand out.
"19. Exceptional Circumstances and Presumed Unsuitable Offences:
Guidance on the interpretation of exceptional circumstances is contained in paragraph 33 of PSI 31/2003.
The Director of Operations .... wrote to all Governing Governors on 20 May 2004 setting out a particular set of factors which would amount to one example of exceptional circumstances.
Following consultation with Ministers, the Chief Executive of NOMS advised that the following features would also amount to exceptional circumstances.
* The likelihood of re-offending on HDC is extremely small; and
* The HDC applicant has no previous convictions; and
* The applicant is infirm by nature of disability or age or both.
This interpretation should be used when determining whether an HDC application is exceptional. However, Governors may continue to exercise their discretion as described in the PSI 31/2003 and there may be other cases, which feature different factors from those above, which the Governor considers to be exceptional."
Thus, whilst exceptionality remains at large for the purposes of the exercise of discretion, the combination of the three features identified in paragraph 19 would amount to exceptional circumstances. The corollary is that if only two out of three of those features are present, exceptional circumstances would not be established.
"c) Suffers from a physical or mental illness
We attach an extract from a psychiatric report of Dr Duncan Angus from 2008, and a report from his counsellor, which confirm [PA's] diagnosis of a recognised mental illness, being a moderate to marked social phobia. Ms Watkinson's report remarks upon the deterioration in [PA's] social phobia in custody. Due to his acute anxiety and group situations, [PA] cannot participate in activities involving other prisoners such as exercise, education classes, offending behaviour work or association, and struggles with simple tasks such as leaving his cell to collect his food.
Ms Watkinson supports his release on HDC on the grounds that it will both prevent further deterioration of his phobia, and provide an opportunity for him to undertake Cognitive Behavioural Therapy, which is the next stage of counselling he requires in order to address his mental illness."
"[PA] therefore cannot benefit from a progression to open conditions which forms the usual resettlement path towards release. In the circumstances, we submit that HDC provides a suitable resettlement alternative."
The summary found at the end of the letter brought together the various points made in the long representations in this way:
"In summary, we submit that if [PA] is released on HDC there is a negligible chance of him re-offending, due to the one-off nature of his offence, which was out of character, the maturity of his children, the natural restrictions on his ability to travel out of his family home due to his social phobia, and his trustworthiness to adhere to licence conditions as demonstrated by the 20 months he spent on bail successfully abiding by the conditions of his licence and family contact order. HDC will also provide him with an opportunity to undertake further counselling work to progress his rehabilitation and prepare himself for reuniting with his children, which will be to the benefit of his children and his family as a whole .... Conversely if [PA] remains in prison until his CRD, he is likely to stagnate or even regress in terms of his rehabilitation, since he cannot undertake group OBP work and further time in custody is likely to lead to further deterioration in his already fragile mental state.
Finally, due to [PA's] mental health problems and the anxiety he feels regarding this application, we ask you to communicate the decision to ourselves and not directly to [him] ...."
"[PA] was referred to me by the Inreach Team at the Lewes Prison. They asked me to assess [PA] and see if I could help him with his sociophobia, which in turn would help him with his interactions with others, especially his family.
I offered [PA] Cognitive Behavioural Therapy as I felt it would be the most useful therapy to help with the sociophobia. It looks at finding the person's fears and worries and then looking at coping strategies to help him get over them.
[PA] found the process very difficult, especially when he was taken out of his comfort zone, and he would not allow himself to try and look beyond the immediate discomfort for the possibly long-term gain. I had to accept that his reluctance to try the exercises and therefore his acceptance of his continued situation.
In conclusion, I feel that at present [PA] is in the safest place he can be and that he is managing to cope with the regime as it gives him some stability and security."
"[PA] has been attending the Friday morning guitar lessons in the Chapel since February 2010. I encouraged [PA] to join the group of six pupils and one teacher (1) to develop his musical ability and skill, and (2) to help him overcome his fear of mixing with other people.
[PA] has missed very few sessions as he makes a great effort to come up from the wing and participate in the group as far as he is able. His courage and confidence have grown noticeably, although he finds attending very hard for him still.
[PA] has made trusting relationships with several landing staff .... and chaplaincy staff .... Although he finds sharing the M1 landing with other prisoners difficult, he has coped and is coping with imprisonment. [PA] has stated to me: 'I am as comfortable as I can be on the M1's landing -- I wouldn't be comfortable moving from M1.04. And I am finding it very hard to cope in prison. I am only just coping. I could not cope at all if I was moved from here as I need regular contact with mum and dad. Mum cannot travel far and I cannot cope with change and am used to my routine and environment here. I am finding it hard to cope mentally due to my mental disorder."
"Whilst it is accepted that [PA] does have a diagnosis of sociophobia and does suffer from panic attacks, there is strong evidence that despite this he has managed to cope in custody. Due to his sociophobia he has not been able to benefit from direct offending behaviour work and any work on his offending would have to be on at 1:1 basis in the future. I do note that Gwyneth Watkinson's comments indicate that he has been offered CBT work here but he has not fully made use of the opportunities available to him."
"I have now had the opportunity to read the comprehensive documentation provided by Colin Fordham, Probation Manager, which included representations from yourself and your colleague.
At one level the decision on whether or not to grant release on HDC is simple, ie [PA] does not fully meet all the criteria outlined in PSI 31/2006. However, I was prepared to explore in more depth whether there truly were 'exceptional circumstances' to justify release. In doing so, I have already considered more recent notes from two members of the chaplaincy team, Glen Hocken and Gwyneth Watkinson, which are relevant, in as much as developing the picture of how well [PA] is coping in custody and his limited engagement with CBT offered by Mrs Watkinson.
These latter reports are important in response to your representations as to the impact on [PA's] mental health of continued custody. It is evident that [PA] is beginning to participate in group guitar sessions, albeit tentatively, but encouraging nonetheless. Mrs Watkinson has attempted to engage [PA] in CBT but reports that 'to date he has found it very difficult to look beyond the immediate discomfort for long-term gain'. She goes on to suggest that [PA] is in the safest place he can be and managing to cope with the regime as it gives him some stability and security. I also note that he has struck up a good rapport with some of the landing staff.
Despite the comprehensive views submitted both in favour and against release on HDC, I am satisfied that the recommendation provided is correct and that [PA] should not be released on HDC."
"On 19 November release on HDC was denied but in reaching that decision I was careful to consider [PA's] situation in the broadest terms, as well as the three specific elements referred to in paragraph 19 of PSI 31/2006. I therefore approached his application by first considering whether the criteria in PSI 31/2006 were met in his case. I am aware that my decisions relating to [PA's] release on HDC have been criticised as failing to consider whether or not he was 'infirm' within the meaning of PSI 31/2006. To clarify, I was particularly careful to consider whether there was evidence that [PA] was sufficiently infirm so as to warrant release under the 'exceptional circumstances' provision contained in PSI 31/2006. In doing so, I took into account the views of staff with whom he had chosen to engage, including two key members of the prison's chaplaincy team, all of whom reported that he was coping adequately. In addition I noted that he had not required the services of the establishment's mental health Inreach team since very early on in his sentence. I also consulted with Colin Fordham .... who is very experienced in the assessment and management of offenders. I concluded that the criteria in PSI 31/2006 were not met. As above, I was careful to go on to consider whether his condition nonetheless amounted to 'exceptional circumstances' .... I again concluded that there were insufficient grounds on the information available to support a finding of 'exceptional circumstances' in [PA's] case."
"11.2 It is therefore my opinion that, from the clinical point of view, despite the positive attitude shown by the authorities, detention in prison is the worst possible environment for [PA] and should be avoided, obviously if this is compatible with other considerations that are outside my area of expertise.
11.3 If [PA] were in the community, he would spend most of the time, if not all the time, at home due to his Social Phobia. The advantage for his mental health would be that his levels of anxiety and distress would be greatly reduced by the fact that he would not be exposed to social situations and that he would be in control of his environment. There would also be the possibility to start treatment in an appropriate environment."
"8. I have been instructed by the Governor .... to provide a report on [PA] to address whether the criteria for release under exceptional circumstances are met.
9. I have also been asked by Mr Colin Fordham .... to address the following questions:
1. To assess [PA's] risk of re-offending ...;
2. To assess the degree of disability and the effects on the claimant by a further period of detention including the considerations for self-harm ...;
3. To advise on the treatment options that are available to [PA] for his sociophobia, both in custody and in the community, and the availability of these;
4. To assess the wider family situation and the impact this has on [PA] ....;
5. The wider implications of any release on HDC."
Within the body of her report Dr Ardron summarised the content of the others she had seen, in particular those of Dr Angus and Dr Procopio. She had access to the claimant's inmate medical record. That demonstrated regular contact following his entry into the prison system in October 2009 until March 2010. There was none after that. She spoke to prison officers who dealt regularly with the claimant. They confirmed the pattern of behaviour recounted by Dr Procopio, but were not concerned about the claimant's mental health as a result of their dealings with him. She spoke to the chaplaincy staff, who thought that he was coping. They talked further about the guitar lessons. She was of the opinion that the claimant was not willing to help himself and also that the legal proceedings were causing anxiety.
"67. .... Ms Watkinson told me that, like Mr Hocken, she has known [PA] from early on in his imprisonment. At first she engaged with him on a supportive basis but found that he did not want to go out from his cell. She offered him treatment with CBT at which point he stopped engaging, making it clear that he did not want to have this intervention. She has continued to see him to provide support. She has frequently had telephone calls from his mother saying that he is distressed and has gone to see him on M wing to find there is no distress. It was her opinion that he was highly dependent on his mother, and her telephone calls contributed at times to his agitation. She has also observed him in the visits centre which is an extremely noisy environment. He keeps his head lowered but is able to remain there during the visit.
68. She told me that throughout her interactions with him, he has steadfastly refused to engage even with the most simple of interventions such as working to increase eye contact. It was her opinion that [PA] did not want to address his problems."
1. Anxiety disorders are very common amongst the prison population.
2. Dr Angus had referred to the social phobia as being "moderate", whilst Dr Procopio thought it "intense and debilitating".
3. When outside prison the claimant had been able to use public transport and whilst inside had attended guitar lessons together with visits from his family in the ordinary visits hall.
4. The claimant had refused to continue with cognitive behavioural therapy.
5. Social phobics are encouraged to expose themselves to the situations that cause their anxiety as part of their treatment.
6. The claimant's social phobia had been appropriately managed.
Dr Ardron mistakenly believed that the claimant had refused pharmacological intervention. Her overall conclusion on this head in her report was this:
"95. It is therefore my opinion that whilst I agree [PA's] activities are certainly limited by his social phobia, this is a common disorder which can be effectively treated whilst in prison and any disability caused by his mental disorder is not of sufficient severity to warrant exceptional circumstances being applied in his case."
"2. Of persons, with reference to physical condition: Not strong and healthy; physically weak or feeble, esp. through age; hence frequently old (or aged) and infirm.
3. Of persons, with reference to the mind: Not firm or strong in character or purpose; weak, frail, irresolute. Also of the mind, judgement, etc.
The origins of the use of the word "infirm" by reference to the mind, the oldest of which is identified in the notes in the dictionary as stemming from 1536, and the more recent from the mid-19th century, suggest a context firmly routed in poor judgement, lack of purpose or character. The mid-19th century examples are:
"His judgment was the infirmest of his faculties" (attributed to Disraeli) and
"He was .... infirm of purpose" (attributed to Martineau)
Miss Prochanska's submission is that the definition is wide enough to encompass the mental illness suffered by the claimant, together with its consequences.
MISS PROCHANSKA: My Lord, simply in terms of the order.
MR JUSTICE BURNETT: You have public funding, have you not?
MISS PROCHANSKA: Yes.
MR JUSTICE BURNETT: Miss Davidson, I am rather assuming you will not seek costs, but I may be wrong?
MISS DAVIDSON: My Lord, you are not wrong.
MR JUSTICE BURNETT: I am not wrong, good. So the order will be: claim dismissed, and the usual public funding order for the claimant. There is an order in place, which was made some time ago, protecting the identity of the claimant.