QUEEN'S BENCH DIVISION
London, EC4A 1NL
B e f o r e :
| The Queen on the application of H
|- and -
|Secretary of State for Justice
Mr David Lowe (instructed by the Treasury Solicitor) for the Defendant
Hearing date: 28 April 2015
Written submissions were completed on 3 May 2015.
Crown Copyright ©
Mr Justice Walker:
|B. Allegations and answers||4|
|B1. The public law duty and its three aspects||4|
|B2. The article 5 duty||4|
|B3. Duty under article 14 not to discriminate||5|
|B4. Duty under Equality Act 2010 not to discriminate||5|
|B5. Duty under s 149 of Equality Act 2010||5|
|B6. The defendant's answers||6|
|C. Relevant history||7|
|C1. Prior to the index offences||7|
|C2. The index offences: arrest, detention, sentence & appeal||7|
|C3. HMYOI Aylesbury: 7 January 2010 to 5 October 2011||8|
|C4. HMP Maidstone: 5 October 2011 to 8 July 2013||9|
|C4.1 The reason for the transfer to HMP Maidstone||9|
|C4.2 Risk reduction work||9|
|C4.3 Arrangements to assess suitability for the SOTP||10|
|C4.4 The November 2012 Parole Board panel review||10|
|C4.5 Further work by Ms Lewis & the January 2013 PPCS letter||11|
|C4.6 Completion of the Lewis assessment in February 2013||12|
|C4.7 Attempts to implement the Lewis assessment up to July 2013||20|
|C5. HMP Lewes: 8 July 2013 to 7 January 2014||20|
|C6. HMP Elmley: 7 January 2014 to 25 March 2015||21|
|C6.1 Move to HMP Elmley and reply from HMP Grendon||21|
|C6.3 The pre-action protocol letter of 17 January 2014||21|
|C6.3 KSPS involvement; CBT begins: February to June 2014||22|
|C6.4 Millfields interview & issue of claim form: 10 July 2014||23|
|C6.5 Mr Russell, the claimant, the OS & OM meet: 13 August 2014||23|
|C6.6 The remainder of 2014||24|
|C6.7 The period from 1 January to 25 March 2015||25|
|C7. HMP Whatton: 25 March 2015 onwards||28|
|D. Alleged breaches||28|
|D1. Alleged breaches of the public law duty||28|
|D1.1 Aspect 1 of the public duty: adequate systems||28|
|D1.2 Aspect 2 of the public duty: unreasonableness||29|
|D1.3 Aspect 3 of the public duty: compliance with policy||31|
|D2. Alleged breach of the article 5 duty||31|
|D3. Alleged breach of duty under article 14 not to discriminate||32|
|D4. Alleged breach of statutory duty not to discriminate||33|
|D5. Alleged breach of duty under s 149 of Equality Act 2010||33|
B. Allegations and answers
B1. The public law duty and its three aspects
(1) The duty is said to have required the defendant to put in place adequate systems to enable transgender prisoners who have committed sexual offences to complete accredited sex offender treatment programmes;
(2) The duty is said to entail that the defendant must not unreasonably fail to provide meaningful risk reduction work to the claimant;
(3) The duty is said to require that the defendant must act in accordance with relevant policy guidance.
B2. The article 5 duty
B3. Duty under article 14 not to discriminate
(1) that the claimant has been denied access to offending behaviour work on the basis of her transgender status; and
(2) this discriminatory treatment is neither justified nor proportionate.
B4. Duty under Equality Act 2010 not to discriminate
B5. Duty under s 149 of Equality Act 2010
B6. The defendant's answers
(1) The claimant has undertaken a number of both accredited and unaccredited interventions which have provided her with an opportunity for rehabilitation.
(2) The claimant's case is particularly complex due in particular to her issues with carrying out group work with men, her relationship issues, and her personality disorders. The scale of this complexity has become increasingly apparent over time during the process of seeking to find suitable treatment options for the claimant.
(3) The defendant has taken active steps to assess the claimant for suitability for further interventions, though due to the complexity of her case (for reasons other than her being transgender) this has proved difficult at times.
(4) The defendant considers that, given the complexity of the claimant's case, the most appropriate pathway is now for further detailed assessment, with a particular focus on her personality disorders.
(5) As in every case of this nature, resource constraints have the consequence that assessment and treatment cannot be provided on demand, and inevitably there will be some periods of delay in progressing prisoners in their rehabilitation.
C. Relevant history
C1. Prior to the index offences
At the time of the index offences you were under statutory supervision for the harassment of another young boy. You had formed a relationship with him and when the victim decided that the friendship had run its course you became hostile, made threats of suicide and sent threatening and disturbing texts and messages to both the young boy and his mother.
Your other convictions include an offence of ABH against your brother and acquisitive offending. Prior to your involvement with the criminal justice system, you had a history of disruptive behaviour at school and you were excluded following allegations that you behaved in a sexually inappropriate manner towards a fellow pupil.
C2. The index offences: arrest, detention, sentence & appeal
C3. HMYOI Aylesbury: 7 January 2010 to 5 October 2011
… the Claimant … also met with the forensic psychology service with respect to an assessment for the SOTP … when the Claimant was in a Young Offenders Institution, HMP Aylesbury. A full IQ assessment was conducted to determine whether she would be appropriate for mainstream programmes. The result indicated that due to her scores falling just below the cut for inclusion on the mainstream programme, the Core SOTP, it was noted that she would need to be considered for the modified version of the Core SOTP, the Becoming New Me Programme. As that programme was not run at HMP Aylesbury and due to her imminent transfer into the adult estate she was unable to be further assessed for the SOTP prior to moving into the adult estate.
C4. HMP Maidstone: 5 October 2011 to 8 July 2013
C4.1 The reason for the transfer to HMP Maidstone
C4.2 Risk reduction work
(1) the claimant took part in a course provided by the defendant's Counselling Assessment Referral Advice and Throughcare Services ("CARATS"), entitled the Rubicon Alcohol Awareness course, which was provided during the second half of April 2012;
(2) CARATS also provided the claimant with Integrated Drug Treatment ("IDT") Relaxation work during the period from March to August 2012;
(3) during the period April to July 2012 the claimant took part in sessions with a clinical psychologist, directed at addressing self harming behaviour, but also exploring relationship beliefs.
C4.3 Arrangements to assess suitability for the SOTP
C4.4 The November 2012 Parole Board panel review
You experienced emotional distress, violence and abandonment in your early life and the Pre-sentence report writer speculated that as a result of these traumas you seek to form enmeshed relationships where you are omnipotent.
You have yet to undertake specific work on your sexual offending which would help to identify risk factors. However, the index offences suggest a sexual preference for children and in order to satisfy your complex sexual and emotional needs you are prepared to violate normal boundaries. Other risk factors include violence, drugs and alcohol and possible personality disorder.
You are currently a standard prisoner on the IEP scheme. There have been several adjudications, including for threatening words and behaviour and assaulting another prisoner.
There have been many instances of self-harming linked to relationship issues with other prisoners, particularly if a relationship ends. You have been attending Healthcare and have had sessions with a Psychologist to examine the link between your relationship issues and self-harming.
The panel noted all information carefully. The panel gave you credit for the progress you have made by completing interventions to address your offending behaviour. You have also been motivated to meet sentence planning targets.
However, against this the panel had to take into account the very serious nature of the index offences which will have caused the victim considerable psychological harm. Your offending suggests that you have a sexual preference for young boys and the panel believed that until you had completed work specifically linked to sexual offending your risk of committing similar offences will be high. The panel therefore concluded that at this stage the level of risk you pose cannot be managed in other than closed conditions.
C4.5 Further work by Ms Lewis & the January 2013 PPCS letter
The responsibility for addressing your risk reduction rests with you. However the Secretary of State has identified from the information contained within your dossier the following further interventions in closed conditions to help you address these factors. Please note that the Secretary of State cannot guarantee to place you on these specific interventions as there are limits on the availability of resources. In addition, some interventions have entry requirements and may not be appropriate for you following these assessments. In these circumstances other offending behaviour courses/interventions may be considered to help you reduce your risks.
• The panel considered that your offending suggested that you have a sexual preference for young boys and believed that until you have completed work specifically linked to sexual offending, your risk of committing similar offences would remain high. Therefore, you are required to address your sexual offending behaviour.
• You are required to complete any further work recommended by professionals assigned to your case.
Your review period is therefore set at 18 months
Your next parole review process will be undertaken in accordance with the Generic Parole Process, a new centrally monitored review process. Your review process is expected to take 26 weeks to complete, as it involves the preparation of reports and co-ordination of various parties, including the Public Protection Casework Section, the Prison Service and the Parole Board. Your parole review will commence in November 2013, and will aim to be concluded by July 2014.
Should your case progress to the oral hearing stage, you will be notified by the Parole Board nearer the time about the exact date of the hearing, which will have a target month of May 2014.
C4.6 Completion of the Lewis assessment in February 2013
1.3.3 Relationships with people
184.108.40.206 During interview [H] identified that she had good relationships with female teachers however did not with male teachers, highlighting that she feels mistrustful towards men. It is possible that her mistrust stem from her reported negative relationship with her step-father. Another possible explanation is that [H] may be scared of men, due to her own transgender issues. …
3. Treatment need targets
3.1 The Structured Assessment of Risk and Need (SARN) Treatment Need Analysis (TNA) framework assesses dynamic (changeable, psychological) risk factors. These factors have been identified through psychological research as risk factors associated with male sexual offenders. … [H] at the time of offending was legally male, and had been living predominantly in role as a male at that point in her life, although she had started to spend some time in role as a woman. There is limited research into dynamic risk factors and attitudes associated with female sexual offenders. I have considered it appropriate, therefore, to use the TNA in [H's] case as a guide to make my assessment. Upon doing so I have identified schemas that I considered could be factors linked to an offending pathway, which are not captured under the TNA framework. From completing this, this has led me to conclude that the following factors appear to be relevant to her sexual offending. A grid showing a summary of the evidence for each risk factor is attached as an appendix to this report. During treatment I consider that the following areas should be explored.
3.2 Child abuse supportive beliefs
… Child abuse supportive beliefs, and the justifications that enabled her to sexually offend against a child, should be explored and addressed in treatment. In my opinion her sexual behaviour and justifications to offend are also linked with her fusion of emotional intimacy and sex in addition to her ideologies of relationships.
3.3 Feeling inadequate – related to schema of negative self image
3.3.1 In interview …[H] reports that the only time she was happy was when she was in a relationship, although acknowledged that she was "needy and intense if in relationship". It appears her negative image has influenced her behaviours among her peers behaving in a manner to try to make people love her, where she feels able to fit in. This indicates that [H] has problematic attachment styles and defines herself by her relationships, if she is not in a relationship, she considered herself to be worthless. Furthermore strives to seek control of situations to make people love her and manage her own sense of inadequacy.
3.3.2 [H] is now living in role as a female and is attending appointment at the gender clinic. She reports that she feels happier within her self and feels that her family have started to accept her as female. [H] has not self harmed for a significant period of time. The last time she self-harmed was following a breakdown of a relationship. This seems to be a pattern that has been evidenced both in the community and custody. It appears that one of [H's] most vulnerable times is where her negative self image is magnified is when she feels rejected by other people.
3.3.3 [H's] negative self image should be explored within treatment with a view to developing a healthier self-image and learning to cope with emotional problems better.
3.4 Out of control emotions
3.4.3 During her time in custody there are examples of [H's] vengeful behaviour, where she has made threats against herself, other prisoners and staff when she has not received her own way. [H] has acknowledged that she throws a tantrum to receive the attention if things did not go her way or if she thought that people had more attention than her.
3.4.4 On consideration, [H's] vengeful behaviour appears to be particularly triggered when her self image is threatened and appears to be strongest when she feels rejected or abandoned in some way. In my opinion this behaviour is linked to her negative self image and her negative attachments in relationships. Whilst this behaviour is not evidenced in her sexual offending, it has influenced other offending. Furthermore this behaviour is linked to factors which I have assessed as driving her offending forward. This should therefore be explored within treatment.
3.5 Feeling more comfortable with children than adults
3.5.1 [H] appears to have had several friends and 'relationships' with males some years younger than herself. The age gap ranges from 2-4 years. [H] did, however, have some female friends who were of similar age. [H] reports feeling very mistrustful towards adult males, this may have influenced her decision to seek the company of much younger males. …
3.5.3 In custody it has been reported that "She generates attention from the younger insecure sex offenders" (cnomis entry 11/06/2012). It should be noted that it is difficult to conclude whether this is generalised to all her behaviour and interactions in prison as this comes from one source based on her wing behaviour. It is possible that [H] feels more comfortable and able to communicate with individuals who she considered to be less intimidating or threatening, linked to her negative self image and her relationship attitudes. It appears that [H] is some what fearful about being rejected or abandoned. It would be logical for her to want to form relationships with people who she feels will not easily reject her, such as younger people or those who are timid or insecure. I therefore consider that this area should be a treatment target.
3.6 Not having emotionally intimate relationships with adults
3.6.4 [H] had 12 sessions with Clinical Psychologist Leigh Curtis (whom she initially had reservations about working with being male) whilst at HMP Maidstone. The focus of these sessions was on her self-harming behaviour, although also spent a small period of time looking at her relationship beliefs. I have spoken with Mr Curtis, he encouraged her to look and change her definition of what love is, as it was identified that she could not leave a relationship if she loved them, regardless of what how negative that relationship maybe. It appears that [H] reacts to her feelings and emotions and her strong emotional attachment overrides any negative thoughts about the relationship. In addition to this [H] appears to have developed a strong mistrust and dislike in adult males. It is possible that this dislike for males is strengthened by her dislike of her 'male body'. [H] reports in interview that males use, manipulate and control women and "think with their dicks". This level of mistrust and dislike appears to be life enduring, and is evidenced in her interactions with others from childhood where she reports feeling mistrustful of male teachers and more comfortable with female teachers. Furthermore she had had very limited male friendship peers. Mr Curtis stated that in his opinion [H] would benefit from experiencing long-term therapeutic environment and relationships, to work on her interpersonal skills and core beliefs about relationships. In my opinion [H] has developed a cinematic romantic ideology about relationships, where love is very powerful and conquers all. I consider that [H's] perceived need to be in a relationship where she feels wanted and loved was a significant driving factor for offending (see 3.8.1). Additionally, her negative relationship attachment style, mistrust in males is significant enough to negatively affect the level of intimacy within her future relationships with adult men and consequently may be more drawn to people she feels less threatened of such as children. I consider that this is a primary treatment area that is associated with her offending that is also associated with her problematic relationship attachments and schemas.
3.10 Additional risk factors/treatment needs – not covered by the TNA grid
3.10.2 Core Beliefs – "Girl Power"
220.127.116.11 [H] has adopted a 'girl power' approach to her life, which is linked to her admiration of the Spice Girls. [H] states that she has had this approach for a number of years prior to custody; however, she states that she uses the rules more positively than negatively. In the past she admits that she twisted this rules and was horrible to people. She describes the rules of girl power
• Approach life with attitude
• Don't let a man tell you, you can't do something because you are a girl
• Be in control of your own life and destiny
• Make up your own rules for yourself – meaning you know what outlook to have in life. [H] provided an example of that rule "don't let people get close to me until I've worked them out"
[H] appears to strongly associate the girl power ideology to the female gender role. It appears that [H] admires and is drawn towards strong domineering powerful roles of women. This could be linked to her mistrust of males, and negative male adult relationships. In order to protect herself, she feels that she needs to take control and charge of males, as other males have done to her. This again indicates a negative relationship attachment style and lack of awareness of emotional intimacy. It is reasonable to consider that her current use of 'girl power' may hinder her ability to develop intimate relationships, and therefore may link to the treatment need 'not having an intimate relationship' and negative attachment styles. In my opinion this should be monitored throughout her treatment and after care and should be explored further in conjunction with her relationship attachments and schemas.
3.11 Case formulation
3.11.1 Given that the TNA grid in this case should only be used to guide my decision making, I have also considered the underlying factors that may have led [H] to sexually offending, using a case formulation. [H's] childhood experiences of abandonment and abuse have led to a schema that people leave her or use her. This has led to her developing a strong mistrust of adult males and with a negative self-image linked to inadequacy. This has impacted negatively on her attachment style and her relationships, namely without a relationship she feels that she is 'nothing'. [H] feels that she needs to be in a relationship with someone in order to be loved, this indicates to her that she is a good person improving her self-esteem and that feels that she is needed. [H] defines herself through her relationships. [H] has developed an relationship ideal, where she expects people want to be with her all the time, expects a high level of sex as intimacy, and expects everything to be perfect all the time, in the case of a disagreement she expects a intense romantic resolution. Her ideal ideologies are vastly different from her reality and life experiences, which then threatens her self identity. This leads to feelings that she needs to be loved and will do anything to achieve or retain that love from another, regardless of whether it breaks the law or is inappropriate (as in the case of her victim). If her self identity is threatened, for instance by a break-down of a relationship, [H] vengeful schemas are triggered and she engages in behaviour to gain retribution in an attempt to regain her self-image. I therefore consider that her primary schemas underlying her sexual offending are 'inadequacy', 'mistrust' and 'attachment' (relationship ideologies), these can impact and can fuel the others and therefore should be targeted within treatment. Her secondary unhelpful schema of 'revenge' is triggered by 'inadequacy' and 'mistrust', as this will also affect the quality of her relationships this should also be targeted and explored during treatment.
4. Factors Influencing Responsivity
4.1 Ability functioning
[H] undertook a Wechsler Adult Intelligence Scale, third edition (WAIS-III) assessment. … A letter written to [H] explains that the WAIS-III assessment indicated that [H] may be more suited to an adapted version of the Sex Offender Treatment Programme rather than the mainstream programme. … staff at YOI Aylesbury [discussed] … seeking permission from Operational Services Interventions Group (OSIG) to override these scores to enable her to participate on mainstream programmes. This has not yet been sought. … SOTP is a high intensity programme, with abstract concepts. As there have been concerns whilst she was at school regarding [H's] level of understanding concepts this should be closely monitored during SOTP. In order to assist [H] on the mainstream SOTP, she may need additional support and treatment providers will need to consistently check and monitor her understanding of the concepts, and try to provide more concrete examples or analogies. Attending the adapted version on SOTP (Becoming New Me) may reinforce schemas of inadequacy or feeling stupid, which is of serious concern. I therefore consider that it would be more appropriate for [H] to complete the mainstream version with additional support from treatment providers, although permission from OSIG will still need to be sought.
4.5 Group dynamics
4.5.1 As highlighted in 4.2, the other participants on the SOTP will be men. [H] has a strong distrust and dislike for men. [H] in her role as a female may be considered as a more vulnerable group member and distinctively different. This would be a different environment from when she completed other offending behaviour programmes, where she was in role as a man. Should [H] feel some what rejected, or strongly challenged by other group members there is a significant risk of her engaging in self-harming behaviour. …
4.5.2 Given her attitudes and schemas around men, and relationships it is likely that other group members may currently or in the past hold views about women that re-affirm her mistrust and dislike in males. This is likely to impact on her treatment and may be psychologically harmful. …
4.6 Consideration of whether treatment needs be met through SOTP
4.6.1 [H] could be considered as suitable for the SOTP, given that she acknowledges committing a sexual offence against an underage male and that the time of offending was legally a male.
4.6.2 … The primary SOTP only targets a mild deficit of inadequacy, distorted intimacy imbalance (feeling more comfortable with children than adult), and lack of intimacy (not having an emotionally intimate relationship with adults), whereas I have assessed this to be significant and therefore will require more intensive treatment than what is targeted on primary SOTP. Furthermore, [H] has developed schemas around mistrust of males, and negative attachment relationship attachment styles that would not be targeted on primary SOTP. No research has been conducted to assess whether the SOTP is an appropriate target that reduces the risk of sexual offending in transgender prisoners and is a programme designed for men.
4.6.3 It is my opinion that attending SOTP at this time would be psychologically harmful to [H] given the risks that other group members may re-affirm her beliefs and mistrust about men. In conclusion, in my opinion a primary SOTP would not sufficiently explore all of [H's] treatment needs, and may re-affirm her assessed treatment need and schemas about men. Given that I have assessed this as a significant treatment need factor (see 3.10) attending SOTP at this time would be psychologically harmful. I concur with Leigh Curtis' opinion (following conversation) that the biggest area for her to work on is her interpersonal relationships and core beliefs about relationships and would benefit from engaging in long term therapeutic relationships and environment. These areas could be addressed sufficiently at a therapeutic community. If a therapeutic community was not available for [H] these areas can be explored through schema led work.
5. Recommendations for Treatment Pathway
5.1 I have assessed that [H] would not benefit at this time from attending and completing SOTPs, as these do not sufficiently address her deficits in relationships and associated schema. Without prior work to address these treatment areas, I am of the opinion that SOTP would be psychologically harmful (see 3.10; 4.6.2). To address her relationship issues and associated schemas [H] should be assessed for suitability for a Therapeutic Community. This recommendation is made irrespective of her gender status. Of note HMP Grendon and HMP Dovegate run male therapeutic communities. HMP Send runs a female Therapeutic Community. I have spoken to a staff member who has worked at this female therapeutic community, who informs me that they have previously had residents who have had diagnosis of gender dysphoria who are not legally female. It is unclear whether they would accept someone with a sexual conviction; I have contacted staff at HMP Send to gain clarification to no avail. A therapeutic environment will enable her to adequately explore and address her relationship deficits. This environment will also enable her to explore and address her other treatment areas as outlined in section 3. Following completion of a Therapeutic Community her progress addressing these treatment areas (section 3) should be assessed to establish whether there are any treatment needs outstanding associated with her sexual offending and whether these should now be addressed through SOTP.
C4.7 Attempts to implement the Lewis assessment up to July 2013
C5. HMP Lewes: 8 July 2013 to 7 January 2014
… I am familiar with [H's] case and spoke with her last week concerning her frustrations and wishes to move.
… my offender manager is actively seeking a suitable Category C prison for [H] to move to.
I have no positive news for you at present; the prison population is currently rising again … We are receiving very few spaces for progressive moves at this time. As soon as we have secured a suitable space, [H] will be informed of this, but please let me assure you, [H's] case is a priority for us and we are trying very hard to progress this.
C6. HMP Elmley: 7 January 2014 to 25 March 2015
C6.1 Move to HMP Elmley and reply from HMP Grendon
(1) the claimant's stance on the index offences;
(2) factors, similar to those identified in the Lewis assessment, that meant that the claimant would be particularly sensitive at present to being challenged by male offenders in a group environment; and
(3) the claimant's personality disorder traits.
C6.3 The pre-action protocol letter of 17 January 2014
(1) to locate the claimant properly;
(2) to provide "relevant risk reduction interventions/work to enable the claimant to evidence risk reduction to the Parole Board"; and
(3) to conduct a sentence planning meeting review.
(1) positive duties under the Equality Act 2010; and
(2) "the duty of care to the claimant by not preventing two serious sexual assaults on the claimant".
C6.3 KSPS involvement; CBT begins: February to June 2014
(1) the claimant's anxiety in relationships if they breakdown,
(4) anger; and
(5) dealing with conflict including compromise.
C6.4 Millfields interview & issue of claim form: 10 July 2014
C6.5 Mr Russell, the claimant, the OS & OM meet: 13 August 2014
C6.6 The remainder of 2014
The key point surely is that there should be some course or perhaps individual treatment which can deal with the risk of sexual offending. It is arguable that the absence of this is (as the Parole Board appears to have indicated) fatal to progress in being able to achieve parole. …
[H] has not completed any work focussed on her sexual offending and as such there is no evidence of reduction in risk. Coupled with this, her custodial conduct is not of a standard that would be expected of a prisoner who is ready to progress to the open estate. My recommendation at this time is that [H] remains in closed conditions until suitable offending behaviour work can be undertaken, and a reduction in her risk to children, and risk of sexual offending can be evidenced. This will also give [H] the opportunity to demonstrate a sustained period of pro-social behaviour in custody.
… shall consider the links if any between gender dysphoria and your offending history and all other aspects of your history, your offending behaviour and your risks and shall advise on an appropriate treatment pathway to reduce those risks
C6.7 The period from 1 January to 25 March 2015
14. In my opinion, I think that the most appropriate treatment pathway for the Claimant is as follows:
(a) A comprehensive NOMS psychological assessment should be carried out to obtain a full diagnostic appraisal of the Claimant's mental health needs, to assess the impact of this on the Claimant's offending, and what steps ought to be taken in consequence of this assessment. It may well be, given what has been observed, that this will be the primary treatment pathway for the Claimant, i.e. the highest priority step to take given that it has the greatest likelihood of reducing risk as much as possible in the shortest time possible, and thereby helping her progress as quickly as possible through the prison system.
(b) In parallel with (a), a further assessment following the one-to-one psychological work carried out at HMP Elmley to decide what the highest priority risk reduction work is for her.
16. I understand that the Claimant is suggesting that all that needs to be done is to complete some form of SOTP, or at least that this is the only appropriate next treatment step and therefore (depending on her response to treatment) progression through the prison system toward release. In reality that is but one aspect of what is likely to be needed, and other matters may be much higher priority i.e. more likely to lead to bigger risk reduction sooner, to her benefit, or enable other work (eg sex offending specific work) to be effective or more effective.
17. The specific aspects of the Claimant's offending history suggest that many of her risk issues related to sexual offending may be more complex than those addressed by Core SOTP alone, and require a consequently more complex treatment pathway. Indeed, in general terms, her case appears to be among the most complex. In particular, there are possible overriding concerns about stalking and obsessive, repetitive behaviour. Further, access to sex offending specific treatment may not be of benefit at this stage because of the Claimant's assessed and inferred personality characteristics that warrant further inquiry and might adversely affect the likely benefit of completing the Core and affiliated SOTPs. …
18. In more complex cases, such as the case of the Claimant, a variety of treatment approaches may be needed in order to maximise what can be achieved for the Claimant in terms of risk reduction, and to maximise the likely outcomes for public protection assurance. In the Claimant's case, given the psychiatric and clinical opinion in the case, it is my opinion that accredited SOTP work is likely to be one part of a broader range of treatment needs which need to be addressed to enable the best outcomes for the Claimant in terms of sustained treatment effect and for public protection in the future (including enabling her to comply with any future licence requirements upon release). To ensure that the most appropriate pathway can be followed in the Claimant's case, a review of the Structured Assessments of Risk and Need (SARN) should be undertaken, and the outcome included in the psychological assessment as described above at paragraph 14(a), in the light of subsequent progression since the SARN was written.
20. Ensuring that therapeutic interventions and psychological treatments, as well as other aspects of the person's sentence plan are sequenced meaningfully can increase the likely treatment gains attained. This is a widely held view amongst professionals working in the criminal justice field, and is the reason why prisoners will all have individual sentence plans, which will include however many pathways as are necessary, in the appropriate order. Completing risk reduction work that is likely to be of the most benefit, in the optimal order, with the full engagement of the prisoner in the process, will maximise potential benefits to the prisoner and the public as a whole.
Mr Kingham tries to suggest that all sex offenders must undertake an SOTP to be released, relying only on an anecdotal account of his own experience. I do not accept this, since the Parole Board will look at all factors and treat each case individually – though often, of course, demonstrating progress on an SOTP will be important. But in any event, it is not relevant in this case. The relevant point is that the Claimant needs much more than just an SOTP, and that other assessment and (most likely) other treatment needs to be undertaken first.
C7. HMP Whatton: 25 March 2015 onwards
D. Alleged breaches
D1. Alleged breaches of the public law duty
D1.1 Aspect 1 of the public duty: adequate systems
D1.2 Aspect 2 of the public duty: unreasonableness
(1) the defendant must not unreasonably fail to provide meaningful risk reduction work to the claimant; and
(2) the claimant must complete specific risk reduction work aimed at her risk of sexual offending before she can have any meaningful chance of release.
(1) It was only in March 2015 that the claimant was transferred to a prison with expertise in the treatment of sexual offenders, HMP Whatton, and "no explanation has been provided for failing to make this transfer more promptly": as to this, no reason has been advanced for thinking that the claimant's location has had any bearing on the ability to provide the work which the claimant needs at the present stage.
(2) "No attempt has been made to provide the claimant with one-to-one work aimed at reducing her risk of sexual offending": as to this, the comments above apply – the defendant is entitled to point out that there has been work aimed at reducing such risk, the real question is why the claimant has not yet been offered work which if satisfactorily completed could lead to release, and the answer is that those charged with addressing the claimant's needs reasonably believe that other work is required first.
(3) "Schema led work has not been provided": as to this, the primary recommendation in the Lewis assessment was for work in a therapeutic community, and for the reasons set out above that recommendation has been taken forward, and alternatives considered and proposed, in a reasonable way.
(4) "It has been clear since summer 2013 that the claimant is unsuitable for a transfer to a therapeutic community and that the reason for this is directly linked to her risk of sexual offending": as to this, it is simply wrong – after the summer of 2013 there were discussions with HMP Grendon which led to a renewed application there, and when that was unsuccessful reasonable alternatives were identified.
D1.3 Aspect 3 of the public duty: compliance with policy
D2. Alleged breach of the article 5 duty
D3. Alleged breach of duty under article 14 not to discriminate
D4. Alleged breach of statutory duty not to discriminate
D5. Alleged breach of duty under s 149 of Equality Act 2010