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
		01/04/2011

Mr Justice Edwards-Stuart:

1. The applicant is a prisoner serving a life sentence for murder. He and another man agreed to rob the landlord of a public house. It was clear that the robbery would involve violence, and violence - indeed gratuitous violence - was used on the landlord. However, shortly afterwards the applicant's co-defendant brutally murdered a barmaid who happened to return to the scene during the course of the incident.
2. On 29 August 2001 Moses J passed a life sentence with a minimum tariff of 12 years. The tariff period expires in February 2012, although the applicant has no right to be released at that point unless and until the Parole Board is satisfied that it is safe for him to be released.
3. The applicant, by his claim form, sought permission to apply for judicial review for the following relief:

(1) A mandatory order requiring the completion of a Cognitive Self Change Programme (CSCP) assessment within 56 days.

(2) Further or alternatively, a declaration that the failure to assess the applicant for the CSCP and/or to transfer him to a category C prison is unlawful.

4. In the Detailed Statement of Facts and Grounds that was filed with the claim form it was stated that the issue raised by this claim is "whether the Secretary of State is in breach of a public law duty to ensure that the Claimant has a reasonable opportunity to demonstrate that his risk no longer justifies continued detention at a time when his minimum term expires or reasonably soon thereafter".
5. The applicant also seeks to argue that the formula for calculating a prisoner's place on the waiting list for CSCP is unlawful. So far as this basis of claim is concerned, I consider that it is not open to the applicant to raise it at this hearing. It is a matter that has arisen since the claim was made and it raises fairly complex issues that would have to be investigated, if at all, on an application that was properly directed to the determination of those issues, rather than by late addition to a claim that has been differently formulated. It was not strongly pressed before me.
6. The single judge refused permission on the ground that the court was being invited, in effect, to manage resources and the allocation of prisoners in respect of those resources. In reality the court was being asked to order or change the priorities as between prisoners on the waiting list. He said that there was no evidence that the Secretary of State had abdicated his responsibilities in relation to the facilities available to prisoners and the management of resources.

The facts

7. The applicant was sentenced on 29 October 2001. By 2009, having changed prison more than once, the applicant was at HMP Swaleside, where he had been since April 2007. That was a prison that offered the CSCP. A Sentence Planning and Review carried out in January 2009 noted that the applicant was cooperative and had been making good progress, attracting positive course feedback. It said that the patterns evident in his previous offending reinforced the need for work to address his propensity towards violence, which is why he had been referred for the CSCP. It noted also that the applicant had a poor disciplinary record in that he had 18 proven Adjudications between 2001 and November 2007, although the pattern appeared to be reducing (the great majority of these having arisen out of incidents during his first two years in prison). However, he did have two Adjudications in 2006, one arising out of an assault on a member of staff, and one in 2007. So it is clear that, after a difficult start, the applicant's behaviour has improved significantly, particularly during the last two years or so.
8. At a Parole Board pre-tariff expiry review carried out in August 2009 the applicant was not recommend for transfer to open prison conditions but it was accepted that he should undertake the CSCP and do so in time to enable a further review to take place shortly before his tariff date was reached. Another report written at about the same time noted that to his credit the applicant had successfully completed ETS and a number of other relevant courses at Swaleside and had achieved enhanced status. However, the writer of the report was not able to support a move to open conditions.
9. Whilst the applicant was at Swaleside an assessment for CSCP was started, but unfortunately it was never completed because the facility was withdrawn in late 2008 for funding reasons before the applicant was able to complete it. In May 2009 the applicant applied to be transferred to HMP Channings Wood, a prison where the CSCP was offered. The following month he applied to be transferred to HMP Highpoint. A little later it emerged that the application to Channings Wood had never been received and so a further request was sent. During the last three months of 2009 further applications were made to three other prisons in the absence of any satisfactory action by Channings Wood. In fact Channings Wood subsequently put the applicant on the list and backdated his application to mid 2009.
10. It seems that the application to Channings Wood followed a meeting with a Forensic Psychologist, Hannah Callum, in January 2009. She told him that there were two psychological assessments which remained outstanding which she recommended should be completed before the assessment for the CSCP. These were an assessment known as HCR-20 and the Violence Risk Scale (VRS). She noted that his assessment for CSCP would have to be completed at an establishment where the CSCP was still running. In her note following the meeting she said that another officer had spoken with the applicant on 21 January 2009 about his views on being transferred to HMP Gartree in order to complete the CSCP. The applicant was said to have told him that he saw this as a "backward move" because he was hoping to be recommended for Category C conditions and therefore wished to go to Channings Wood. At all events, she recommended that following the outcome of his Parole Review he should be transferred to a suitable establishment at which he could undertake the assessment for the CSCP.
11. In a witness statement made for the purpose of this application on 1 October 2010, by which time the applicant had been transferred to HMP Kingston, in Portsmouth, the applicant commented on this report of the conversation about a possible move to HMP Gartree. He said that his response to the suggestion had been that he doubted whether either of the prisons mentioned (the other was HMP Long Martin, a high security prison) would be prepared to accept him on a "backward move". He said that he understood that he had to await the outcome of his Parole Review before he could be moved in any event, and that it was never suggested that he might obtain a place on the CSCP more quickly by applying to those other prisons. In effect, he rejected the suggestion that he had refused the possibility of a transfer to HMP Gartree.
12. At the time of service of the claim form the applicant was 30^th on the CSCP waiting list for transfer to Channings Wood. By the time of the hearing of this application, the applicant was 19^th on the waiting list. The course takes between 8 and 17 months

The application

13. In his skeleton argument served for the purpose of this application Mr Hugh Southey QC accepted that: "It may be that the Claimant cannot obtain individual relief (which he sought in his claim for judicial review) because a finding of illegality is regarded as sufficient relief". He then went on to submit that there was no reason in principle why the applicant could not argue that there should be a declaration that there had been a failure to provide the resources needed for prisoners to progress towards release. He submitted that was effectively the declaration that was made in R (Walker) v Secretary of State [2010] 1 AC 553.
14. I have some doubts as to whether the applicant is entitled to modify his claim for relief in this way, but for present purposes I will proceed on the assumption that he is entitled to do so.
15. In his application for renewal of his claim for permission the applicant said this:

"It is respectfully submitted that the refusal to grant permission does not address the fact that the claimant has waited since April 2007 to be assessed for the programme and despite nearing his tariff expiry, he has still not been informed when this will take place. The request is not about managing resources but about the substantial unfairness that has arisen in this particular case."

16. It is an unfortunate matter of record that when the government introduced the new sentence of Imprisonment for Public Protection (IPP) in the Criminal Justice Act 2003 no proper steps were taken to increase the resources that would be required to carry out the necessary pre-tariff reviews in order to assess whether the prisoners still represented a danger to society or were safe to be released. That became the subject of the application for judicial review in Walker.
17. Reading the decisions of the House of Lords and the Court of Appeal ([2008] WLR 1977) together in Walker, I consider that the following principles were established:

(1) The systemic failure by the Secretary of State to make reasonable provision to enable prisoners (in that case IPP prisoners) to demonstrate to the Parole Board their safety for release amounted to a breach by the Secretary of State of his public law obligations (see paragraphs 40 and 46 of the judgment of Lord Phillips MR in the Court of Appeal - this was not a live issue on the appeal to the House of Lords).

(2) Irrespective of any such breach of the Secretary of State's public law obligations, a prisoner's detention during the tariff period is not incompatible with Article 5(1).

(3) The failure to make such provision in an individual case did not make the prisoner's detention beyond the tariff date unlawful or in breach of Article 5 unless it persisted for an unreasonable period of time ("a very lengthy period", per Lord Brown, at paragraph 49 in the House of Lords).

18. I note that Lord Judge CJ, at paragraph 121 of his speech in the House of Lords which was delivered on 6 May 2009, said that the deficiencies that had given rise to the breach of duty were, at last, being made good and that, speaking very generally, courses and training were available and offenders were able to take advantage of them.
19. Mr Southey submits that in this case there would appear to be no suggestion that the applicant has been treated in any way that is out of the ordinary. So, he submits, "As a consequence, his case would appear to be good evidence as to how the system for the provision of offending behaviour work works in practice".
20. Mr Southey also submitted that, because the Secretary of State was contending that the public law duty in Walker did not apply to this case, the Secretary of State must, by inference, be treating non IPP life prisoners differently from IPP prisoners. This he submits would amount to a breach of Article 14 in that it would constitute discriminatory conduct. Alternatively, he submits, since the Secretary of State is saying that the duty in Walker does not apply, that would explain why the appropriate resources have not been made available to the applicant.
21. Mr Simon Murray, who appeared on behalf of the Secretary of State, submitted that there could be no question of a breach of Article 5 because the applicant had not yet reached the end of his tariff period. He was still being detained for the minimum term decided by the sentencing judge. Any claim, therefore, must rely on the breach of a public duty at common law. He submits further that if Article 5 is not engaged then there can be no question of Article 14 being engaged. I consider that this last submission is correct: see paragraphs 41 and 42 of the judgment of the ECH in Clift v The United Kingdom (Application no. 7205/07).
22. Mr Murray submitted also that the public law duty that was held to exist in Walker was confined to the circumstances in which the IPP provisions were introduced. As I have already outlined, this was the complete failure to appreciate that the introduction of imprisonment by way of IPP would require an increase in resources and would not simply be "resource neutral" as was apparently anticipated at the time. Mr Murray submits that by stating that the public law duty as expressed in Walker does not apply to this case the Secretary of State is not thereby denying any obligation owed to other life sentence prisoners.
23. On this point, I consider that Mr Murray is correct. The duty in Walker rose in specific circumstances. It was not contended that inadequate provision existed prior to the introduction of IPP: the complaint was that the additional provision that would inevitably be required was not provided.
24. Accordingly, in my judgment the denial of the application to this case of the duty expressed in Walker goes no further than that.
25. I consider that in order to succeed Mr Southey must show, first, that the Secretary of State owes a duty to all life prisoners to make reasonable provision to enable them to demonstrate that they are or will be safe to be released at the expiry of the tariff period (and, indeed, thereafter if they are not safe to be released on the expiry of the tariff period). Second, that there has been a breach of that duty.
26. I am prepared to assume for the purposes of this application that the duty contended for by Mr Southey exists. However, I do not accept Mr Southey's submission that it can be inferred from the facts of this case alone that there has been any systemic breach of duty such as to make the Secretary of State's conduct unlawful.
27. It is of course perfectly true that the applicant has waited for some time, at least since the beginning of 2009 if not earlier, and is still on a waiting list today. But many factors are involved and whether or not the applicant's position results from a systemic lack of resources is far from clear on the material before the court. In the absence of any admission that there was a breach of such duty, I consider that to establish the breach of duty contended for would require an investigation of the position throughout the prison estate generally. There is no such evidence in this case. To extrapolate from the particular to the general would not be a legitimate exercise in this case.
28. It may be, and I express no view one way or the other, that the applicant could show that there has been maladministration (I use this term as shorthand for the relevant cause of action) in his case that constitutes a breach of some duty owed to him personally in his capacity as a life sentence prisoner and that he will suffer damage as a result in the form of an extended period of detention. Such a claim, if it is to be made, would be fact sensitive and would require a detailed investigation of all the circumstances, including the applicant's own prison history. That is not a claim that is suitable for determination by way of judicial review.
29. For these reasons, therefore, I conclude that this claim as presented in the claim form and Grounds is not reasonably arguable and accordingly I refuse permission.