England and Wales High Court (Administrative Court) Decisions

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

		Sitting at: Manchester Civil Justice Centre 1 Bridge Street West Manchester M3 3FX
		23 February 2011

His Honour Judge Stewart QC:

This is the judgment in the case of Turkay Ates.

Introduction

1. The claimant is a Turkish national born on 3 April 1971. On 7 August 2003, he was convicted of serious firearms offences, including possession of a firearm with intent to endanger life. He was sentenced to 16 years imprisonment. The claimant is eligible for non-parole release on 18 July 2013.
2. On 12 July 2010, the claimant requested recategorisation from Category C to Category D. This was refused on 24 June 2010. The claimant complained, and on 29 July 2010 the defendant reconsidered, but again refused the request.
3. The claimant began proceedings. Permission was refused on paper by Langstaff J. On 18 November 2010, the defendant again reconsidered the claimant's categorisation, though this was because of a change in the claimant's immigration status, and not because of the claimant's claim.
4. On 29 November 2010, Burton J gave leave for the claim form to be amended, and granted permission for the claimant to apply for judicial review on amended grounds. On 13 January 2011, the defendant further reviewed and again refused the claimant's request for recategorisation. It is this decision which is now the subject of the application for judicial review.

The decision of 13 January 2011

5. The decision of 13 January 2011 is short, and should be read in full. It states this:

"Risk of harm

High risk to the public --28 October 2010 OASys

--05 Nov 2010 PAROM1

Serious Index Offence – 2003 – Possessing two guns (one a self loading pistol), a silencer and some ammunition. He admitted to the Offender manager that the gun found at his home was there for approximately two years.

These items would suggest a level of professionalism.

Pattern of offending behaviour which involves the use of weapons. In 2000 found guilty of possessing an article with a blade or point in a public place which he received an 18 months conditional discharge.

OM states that he 'continues to accept little responsibility for his offending behaviour' PAROM (5/11/2010)

Given the serious nature of his offending behaviour and his apparent minimising of the possible consequences, I believe he has the potential to cause serious harm to others.

Increased risk of harm

I am unclear as to how any earlier assessment of risk of harm to the public was reached. I note the PAROM (5/11/10) indicates OASys risk of harm level; Time of sentence: High. OASys risk of harm level; now: high.

I believe that there may have been a period where Mr Ates was considered a low risk on his OASys score for harm.

I can only stress that the current score is consistent with the serious nature of the offence."

Reoffending

Risk of reoffending identified as low using the static tool of OASys. The Offender Manager considers this risk to be medium (PAROM 05 Nov 10), based upon the nature of offence, and that Mr Ates continues to minimise his role in the crime committed.

Abscond

There is no evidence to suggest that there is more than an average/low risk of re-offending. However consistent with PSI 3/2009, the risk of abscond is disapportionate [sic] to the high risk of harm to the public, should they abscond or a high risk to public confidence in the Prison Service (para 14.3)"

Custodial behaviour

Mr Ates shows good custodial behaviour – He is an 'Enhanced' prisoner, there are no concerns under this level of control.

Intervention to reduce risk

Successfully completed ETS 2007 and Victim Awareness Course in 2007.

Plan on release

On release Mr Ates will be subject to an MAPPA plan as a Category 2 case.

Conclusion

I note the Offender Supervisor's comments in relation to the RC1 (22 Dec 10) process and the Offender Manager's comment on the PAROM1 (05 Nov 10) regarding their recommendation for open conditions to be considered.

The Offender Manager acknowledges the risk Mr Ates potentially presents but takes the view that open conditions would somehow test this concern. I do not consider that this approach is appropriate, especially when it is acknowledged that the proposed risk management plan on release will be to the conditions similar to that found in an open prison.

The Offender Supervisor's comment makes no reference to risk, and seems to rely upon the possible consequences to his possible citizenship if caught offending again.

On considering all above factors, I conclude that Mr Ates' Security Category is appropriate with the threat that he potentially poses to the public, and the potential of him going onto re-offend. I consider that the potential risk to the public and the harm to public confidence outweigh the likelihood of absconding."

The grounds of challenge

6. The remaining relevant ground is the first ground in the amended claim dated 29 November 2010, namely:

"The decision maker relied upon the static risk of harm as determinative and failed to take account of the low risk of reoffending in circumstances whereby the former cannot be reduced, thereby rendering the decision irrational and/or unlawful by virtue of the failure to take account of relevant considerations."

7. The claimant has sought permission to reformulate this ground by amendment to the following wording:

"The reliance upon the current risk assessments as determinative of the claimant's categorisation is irrational in circumstances whereby the means of him demonstrating a reduction in that risk have been put beyond him."

This amendment is not objected to, and is allowed.

Regulation of prisons

8. Mr Slater counsel for the defendant, has helpfully summarised the relevant statutory material in his skeleton argument. I shall quote from two documents, PSO0900, Categorisation and Allocation, which starts from the proposition that:

"Every prisoner must be placed into the lowest security category consistent with the needs of security and control." (1.2.3)

1.2.11:

"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."

PSI 03/2009, Recategorisation to Category D, states:

"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 risk of harm 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 that concern.

Control issues, which mean that the prisoner poses a threat to the security of the prison, or the safety of staff or other prisoners, or that the prisoner's notoriety potentially undermines the security of the prison.

Risk levels may increase or decrease depending on individual circumstances and the prisoner's security category must reflect this" (Paragraph 8.1)

Paragraph 14.1:

"It is essential that prisoners must be assessed as trustworthy and sufficiently low risk before being allocated to open conditions. In making the decision, governors must keep in mind the particularly challenging management issues associated with the low physical security and supervision levels of the open estate and that the environment and regime opportunities available in open prison may not be suitable for a prisoner who is still many years away from possible release.

Paragraph 14.4:

"When assessing long sentence prisoners for open conditions it is vital to balance the risks involved if the prisoner were to abscond against the likely benefits to the prisoner of going to open conditions at this stage."

Discussion

9. It is common ground that the claimant is unsuitable for offender behaviour programmes because his risk of reoffending is considered to be too low, and there are no specific courses aimed at the offending of which he has been convicted.
10. The Parole Assessment Report Offender Manager (PAROM 1) dated 5 November 2010 contained the following:

"OASys scores

...

OASys risk of reconviction; now: Low.

...

OASys risk of serious harm level; now: High.

...

These were serious offences, indicating the risk of significant harm to others. The use of a silencer as well as the gun suggests a level of professionalism, and the fact that Mr Ates was found in possession of two firearms is of particular concern. His account of how and why he bought a firearm lacks credibility in my view. I asked him what he intended to do with the gun once he purchased it, and he denied any intention to actually use it, though he could not explain how he planned to protect himself with it if he did not intend to use it. The fact that he purchased a gun and kept it for such a length of time as 'protection' would indicate that there was intent to use it if he considered it necessary. There appears to have been more going on around these offences than he is prepared to admit and therefore it has not been possible to ascertain the full extent of Mr Ates' offending behaviour.

...

9. Current risk assessment:

a. Serious harm to others.

Due to the serious nature of these offences, I would assess Mr Ates as posing a high risk of harm to the public. Despite his claim that no harm was intended, it was certainly the view of the sentencing court that this was not the case. In addition, Mr Ates has expressed limited insight into his offending behaviour. Any offence involving a firearm has the potential to cause serious harm to others and these offences were of particular concern. It is my assessment that Mr Ates has the potential to cause harm to others if he reverted to his previous lifestyle upon release. He insisted this would not be an issue for him, however he continues to accept little responsibility for his offending behaviour.

b. Re-offending

The static risk assessment tool assesses Mr Ates' risk of reoffending as low. I would assess Mr Ates as being of medium risk of reoffending. This is based on the nature of the index offences and the fact that Mr Ates continues to minimise his role in what happened. His risk of reoffending may reduce if he moves away from London. ...

...

12. Recommendation

Mr Ates has made significant progress in custody and his maintained enhanced status demonstrates continued motivation and compliance. In addition, Mr Ates has completed a number of courses and has improved his English-speaking skills over the course of his sentence, thus improving his employment prospects. He completed both of the recommended programs and stated he is willing to comply with any conditions put in place for him. There is no offending behaviour work suitable for him at this time, and therefore I am not able to recommend any further offence related programmes for his completion.

While Mr Ates' behaviour has been without concern, it is my assessment that his risk remains high at this time. I am of the view that Mr Ates would, however, be suitable for a move to open conditions. Due to the ongoing immigration issues he has previously been denied the opportunity to progress to a Category D establishment. However, it is my assessment that this would be an appropriate move for him at this stage in his sentence. His risk could be tested in open conditions and this would also allow him to pursue employment and educational links, which will assist his resettlement on release.

It is therefore my recommendation that Mr Ates be considered for a move to a category D prison, where he will need to continue his good behaviour and prove to the Board that his risk can be managed in these conditions, and eventually in the community."

11. The Offender Supervisor and counter-signing Senior Officer said this on 15 November and 17 November, respectively:

"Offender Supervisor's Comments: Mr Ates is a High Risk to the public, as set by Probation and a MAPPA nominal. He has also had paperwork served on him informing him that Immigration are seeking to revoke his refugee status and Indefinite Leave to Remain in the UK. These facts would normally go against recommendation for open conditions. However, Mr Ates has been given a rolling 6 months period when he is in the community to report regularly to immigration to prove that he has not been re-offending and is complying with the authorities. His wife and daughter, who visit him, are here in the UK and they appear to be a strong family unit. Mr Ates would have a lot to lose if he were to attempt to abscond. His custodial behaviour has been exemplary, and he is an enhanced offender with no IEP warnings or adjudications against him. There are no further interventions available to further reduce his risk and his Offender Manager will not reduce it until he has been tested. Probation are of the opinion that it was time he was tested in open conditions. I therefore recommend him for progression to re-categorisation to 'D'."

Underneath that, the counter-signing Officer has said: "I agree with all the relevant entries and feel that Mr Ates would make a highly suitable Cat D prisoner" and the recommendation is "Re-Cat to D."

12. As I have already quoted in paragraph 5 of this judgment, the recommendation was rejected for the reasons given in that document.
13. Mr Stanbury for the claimant submits that there is an impasse here. Put bluntly, he says:

(1) There is nothing more the claimant can do to reduce his risk.

(2) Therefore, there is a breach of the defendant's public law duty, because it is beyond the claimant's power to demonstrate a reduction of risk, and therefore he will remain Category C. Further, that parole is likely to be barred to him, because he will not be in open conditions, which is likely to be a requirement of getting parole (cf. the offender supervisor's comments in the 17 November 2010 document that the Offender Manager will not reduce his risk until it has been tested).

14. It seems to me that this case falls on a simple issue of fact. The Offender Manager categorised the claimant's risk as medium, based on the nature of the offence and that the claimant contrives to minimise his role in the crime committed. These two factors were both taken into account in the 13 November 2011 decision. The second factor is of importance. It is something which may properly be part of an assessment of risk (cf. R (Roberts) v SSHD [2004] EWHC 679 (Admin) at para 34). In the present case, it was based on the passage which I have already read from the PAROM 1 report. If one poses the claimant as a hypothetical person A, and compares A with hypothetical person B, and B now accepts the fact that having a gun for protection in the belief that they will never use it does not stand up to scrutiny, then it is perfectly understandable to say that A is more likely to reoffend by having a gun than is B. That is even before one takes into account the more subjective elements in the relevant extract, namely:

"His account of how and why he bought a firearm lacks credibility in my view."

And:

"There appears to have been more going on around these offences than he is prepared to admit, and therefore it has not been possible to ascertain the full extent of Mr Ates' offending behaviour."

15. Once this essential fact is grasped and accepted, in my judgment there is no impasse of the defendant's making on the facts of this case, nor is there any irrationality in the defendant's decision on the basis of the ground of claim relied upon, namely that the means of demonstrating a reduction of risk have not been put beyond the claimant.
16. Nor would it be right to speculate what the decision would be absent that factor, nor on the law obtaining if the decision had been that merely based on the seriousness of the offence the claimant would not have been recategorised. Therefore I express no final view on the differing interpretations of paragraph 31 of R (Falconer) v SSJ [2009] EWHC 2341 (Admin) and paragraph 24 of R (Krstic) v SSJ [2010] EWHC 2125. I shall record in briefest outline the rival submissions, though I will add that my inclination would be to favour the defendant's submission. The claimant's case is that if the claimant is in a position whereby the means of achieving recategorisation are beyond him, then that is unlawful. The defendant's case is that the law is only that the defendant may not impose on a prisoner a condition precedent to recategorisation, which condition precedent is unachievable.
17. Nevertheless, for the reasons given earlier, this application will be refused.


Order: Application refused.

^^PJD^^^

Mr Stanbury: My Lord, could there be an order for a detailed assessment of the claimant's publicly funded costs?

His Honour Judge Stewart QC: Otherwise, no order as to costs or what?

Mr Slater: No, my application would be that the claimant should pay the defendant's costs, to be assessed if not agreed.

His Honour Judge Stewart QC: Well, I cannot make an outright order, can I?

Mr Stanbury: No, we went over the wording in Jacob, and I think it was that the claimant do pay --

His Honour Judge Stewart QC: Well, it is in the White Book.

Mr Stanbury: -- an amount to be determined by a District Judge.

His Honour Judge Stewart QC: Yes.

Mr Stanbury: Rather than the common wording, which is subject to the Access to Justice Act section 11 proviso.

His Honour Judge Stewart QC: Yes.

Mr Stanbury: I think your Lordship may have it to hand.

His Honour Judge Stewart QC: Well, I have it to hand. Whereabouts to hand it is, I roughly know where it is, but it always takes me, if I am not in my own court with it flagged up, a moment to find it.

Mr Stanbury: My Lord, I have it here, if it assists.

His Honour Judge Stewart QC: Oh, do you? Upon hearing counsel of both parties: (1) application refused. (2) -- yes?

Mr Stanbury: The full costs in this claim which have been incurred by the defendant are to be determined by a District Judge. (3) The claimant (a party who was in receipt of services funded by the LSC) do pay to the defendant an amount to be determined by a District Judge.

His Honour Judge Stewart QC: Yes.

Mr Stanbury: (4) There be a detailed assessment of the costs of the claimant, which are payable out of the Community Legal Service Fund. That is all, my Lord.

His Honour Judge Stewart QC: I think that is wording that is in --

Mr Slater: I could not have put it better myself.

Mr Stanbury: It says here, I am getting this straight from the transcript of Jacob at page 14.67 of the White Book.

His Honour Judge Stewart QC: 14.67. No, it is not there. It rings a bell.

Mr Stanbury: The transcriber may have missed it then, but that is the wording that we --

His Honour Judge Stewart QC: Yes, it rings a bell. Yes, I still cannot find it. That was wording that was taken out of the White Book at the time, was it?

Mr Stanbury: It is, yes, and your Lordship commented that is the specimen order from the (inaudible) Costs Office.

His Honour Judge Stewart QC: Costs Office. More honoured in the breach than the observance, I think. Is that okay, Mr Slater?

Mr Slater: Yes, thank you, my Lord.

His Honour Judge Stewart QC: All right. Thank you.

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