England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand. London. WC2A2LL
		26/02/2016

Introduction

I am required to conduct a periodic review of tariff for a detainee at Her Majesty's Pleasure in accordance with the House of Lords judgment in the case of R (Smith) v Secretary of State for the Home Department [2005] UKHL 51.

1. On the application of the offender, I make an anonymity order and, accordingly, this judgment is anonymised as is the description of the offender.

The Legal Framework

2. In the case of Smith, the House of Lords held that the tariff for a person sentenced to be detained during Her Majesty's Pleasure may be reduced, on reconsideration, if there is clear evidence of exceptional and unforeseen progress. There are three possible grounds on which to reduce the tariff:

i) The prisoner has made exceptional and unforeseen progress during the sentence.

ii) The prisoner's welfare may be seriously prejudiced by his, or her, continued imprisonment and the public interest in the offender's welfare outweighs the public interest in a further period of imprisonment lasting until the expiry of the current tariff.

iii) There is a new matter which calls into question the basis of the original decision to set the tariff at a particular level.

3. My role is to review the current tariff and, if appropriate, to recommend a reduction based on one or more of those criteria. The Lord Chancellor and Secretary of State for Justice have agreed to honour any recommendation made.

Background of the Offence

4. F was convicted of the murder of RD on 23^rd April 2010. On 17^th November 2010 he was sentenced to detention at Her Majesty's Pleasure, with a minimum term of 9 years less 202 days spent on remand. His tariff expiry date is the 29^th April 2019. He is currently located at HMP Aylesbury, a closed category YOI.
5. The victim of his crime was aged 45 years at the date of his death. F was then 14 and is now 20.
6. There was a co-accused, S, who was also aged 14. She had an older sister, C, who was then 16 and has recently given birth to a child of whom F is the father.
7. The victim was S's uncle. Allegations were made in January 2010 that he had sexually abused S and C. In January 2010, F was interviewed by the police to the effect that he had received a phone call from C that her uncle had "tried it again" with her. The police investigated and, on 23^rd April 2010, the CPS decided not to proceed against RD. On the same day, RD had spoken to C about that decision in terms which upset her and, thereafter, by arrangement, F and S met near F's home, went to RD's flat and, having entered his flat, lured him into the kitchen where he was attacked by F. The jury concluded that there was no element of self-defence in what then happened. F repeatedly stabbed RD, fatally wounding him, with two blows which penetrated his heart.
8. F had no relevant previous convictions. The pre-sentence report describes him as "a boy who outwardly presents as both physically and mentally more mature than his years. This is also how he often perceives and presents himself to others".
9. The judge, in sentencing F, noted that he had made substantial progress since being on remand at Oakhill and hoped he would continue to do so. He sentenced F on the basis that he did not have an intention to kill the victim but only to do him grievous bodily harm. It is not suggested that the minimum term imposed was inappropriate, it was not subject of any appeal.

The Evidence of Progress Made

10. There are two tariff assessment reports (TAR) on F, one is dated 13^th May 2015 from his probation officer. She has known him since July 2013 at HMP Warren Hill. She has noted a significant change in F's outlook and attitude since the commission of the offence. He has formed his own goals and has mapped out the steps he needs to take to achieve them. He is trying to achieve A Levels. Over time he has accepted responsibility for his actions and attempts to resolve problems in a more assertive and methodical way and presents as more conscious of the impact of his behaviour on himself and on others.
11. She does not think continued detention in custody would damage or put at risk his continued development. He has made good progress and would benefit from putting the skills he has learnt and developed on programmes he has completed: Resolve, JETS, and the Forgiveness Programm, into practice in a less structured environment.
12. In her view his progress has been good, he has met the sentence plan objectives set for him and continues to pursue his own development. He has maintained good rapport with staff. During the initial years of his sentence he resorted to violence and aggression to resolve problems but has recently demonstrated his propensity to be assertive rather than aggressive. He has tried to avert confrontations and has not allowed himself to be influenced by the negative behaviour of others. He has evidenced a good understanding of the need to control his emotions and ways of doing so that are effective for him. His use of consequential thinking has also increased.
13. The second report is from his supervising officer at Aylesbury, also dated 13^th May 2015. This officer has known F since his arrival at Aylesbury from Warren Hill in September 2013.
14. He has matured both physically and emotionally, which is to be expected. He accepts full responsibility for his actions and shows remorse and empathy for his victim. His prison case notes demonstrate mature and sensible behaviour, a willingness to improve and the ability to apply consequential thinking which was absent at the time of the index offence.
15. This officer does not think continued detention would have any detrimental effect on his continued development. He has coped very well, given that he entered the penal system at a very young age, and has managed to complete offending behaviour programmes with very good results. It is apparent that he is putting those new skills to use.
16. F has demonstrated that his attitude and behaviour have changed considerably compared with when he first entered custody. He has matured, and been able to use his time in custody constructively. The personal social development course was completed with him becoming a peer- mentor. He has completed the Resolve course to a very high standard, receiving positive comments from the facilitators. He is not a concern to the good order or discipline of the establishment. He is well behaved and associates with a few carefully selected peers. He has good relationships with staff, being polite and non-confrontational. In May and June 2014 he was found guilty of refusing to leave the segregation unit following an alleged assault of another prisoner of which he was found not guilty. The officer does not believe his risk of serious harm has increased. The post-programme report on the Resolve programme, completed on 25^th March 2015, is reflected in these TARs and demonstrates under each of the headings good progress and praiseworthy comments.
17. The observations of the victim's family have been sought. His mother has said that, although she does not hold a grudge against F, it would be unfair if his sentence was to be reduced. She believes he should serve his time, as anything less would mean her son's life was not worth anything. F was known to her family as quite a respectable young man and they cannot come to terms with why he chose to kill the victim. She recognises F was young at the time of committing the offence and knows that he will be released someday. But she feels he should serve the sentence the court gave him without any reduction.

Submissions by and on behalf of F

18. There is a statement of F in which he describes in some detail his time in prison. He describes a pattern of finding it hard at the beginning in each of the institutions in which he has been located, but of learning how to make the most of his time at each of them. He describes himself as determined to get as much education as possible and to complete as many courses as he can. He describes obtaining qualifications and experience as a peer-mentor. What he has been most proud of is that he has an education. He has become a prolific reader and has a trusted job as a library orderly. He has developed positive thinking skills and has had a good relationship with staff. He realises that at the time of the offence, though he thought he was mature, he wasn't, he was just putting a front on for self-protection. He now sits and thinks about things and how best to sort situations out rather than getting angry. He accepts he still does stupid things but takes responsibility and will always check to try to sort them out before they get serious. He describes the huge impact having a son has had on him and now wishes to be a good role model for him. His main aim is to be a good father by getting a good job and supporting him. A reduction in tariff would enable him to be eligible for open conditions sooner and he could apply for ROTL to see his son and do educational work in the community. His aim is to become a chef and would wish to get some experience of this in open conditions.
19. F relies on a clinical psychology assessment conducted by Dr Sinead Marriott a consultant clinical psychologist dated 16^th October 2015.
20. In her opinion, F meets the criteria for a review because of his exceptional progress. Whilst in custody he has completed all available courses, taken advantage of the educational opportunities, has good relationships with staff and selected peers and been given positions of responsibility where he has done work for the benefit of others, for example, as a peer-mentor and library assistant. He does not have attitudes condoning offending, violence or drug use and takes responsibility for his offence showing remorse and empathy. There is a degree of minimisation which has been taken into account by her in the risk assessment.
21. She acknowledges that a degree of maturing and change would be expected when someone enters custody at such a young age. In her opinion, F has a number of inherent characteristics, intelligence, calm temperament, good social skills and a positive attitude which have resulted in a level of resilience enabling him to respond to the consequences of his wrongdoing and develop into a mature and insightful young man.
22. She has produced a detailed report informed by all the relevant documentation and a 2½ hour long interview on 28^th September 2015. She describes the progress he has made in the terms of the various courses he has completed, Sycamore Tree Victim Awareness course, the Resolve course and, some years ago, the JETS course as well as the Forgiveness course. He has completed all the courses that are relevant for him in custody. He describes his hopes for the future, has plans to do a catering course but is also interested in undertaking an accountancy and business management course at the Open University in order to be able, at some point in the future, to run a library.
23. In terms of risk assessment, she uses the Structured Assessment of Violence Risk in Youth (SAVRY) which is specifically designed to assist assessing risk in adolescence between the ages of 12 and 18. The outcome of that is that he has obtained no high, 8 moderate and 16 low risk ratings and has 5 out of 6 protective factors, it not being possible to rate the other item. On that measure, F presents a low risk of reoffending violently.
24. She has also applied the HCR-20, version 3, tool for structured professional judgment of risk in adults aged 18 or over. Of those, 4 out of 10 historical risk factors were present, 2 were rated as moderate, the other 2 rated as low. 1 out of 5 clinical risk factors was assessed as present and was rated as moderate. Of the factors relating to future risk management problems none of the 5 were present. He did not receive a high rating of relevance on any of the items. On that measure she rates F as a low risk of reoffending violently in the future.
25. Dr Marriott has provided a detailed opinion.

Violent Reoffending. The reports of his engagement in custody suggest he has pro-social attitudes and aims, with the ability to distance himself from negative peers and negative influences and to cope with setbacks. He has shown a remarkable resilience, robust mental health and a positive, cheerful outlook. His behaviour record includes a low number of concerning behaviours for someone incarcerated at such a young age in establishments where young inmates often struggle to cope without resorting to aggression. His risk has substantially reduced over the course of his sentence because he has attended the relevant courses and has learnt new skills and modified previous negative attitudes. His account of the offence remains as it was at trial, which remains an important issue for him fully to acknowledge. This has been counted as minimisation and have been taken account of in risk assessments.

26. He has successfully completed all the suitable courses available in closed conditions. He would benefit from a specific intervention relating to the negative consequences of gang involvement and strategies to prevent getting thus involved. She does not know of any accredited programmes for which he would be available in open or closed conditions which address this and, in her opinion, individual sessions with his offender manager, or supervisor, or someone from Lambeth Youth Offending or Probation or Social Services familiar with gang issues in the area where he is from, could be useful. The question whether he took a knife with him on the occasion of the offence, which he continues to deny, would be worth exploring with a psychologist or offender supervisor.
27. F would benefit from some work helping him know where and how to access support when facing problems in the future. This could happen in open conditions and in the community. He has made significant progress in this area but is still somewhat naive and somewhat restricted. He needs to develop a network of possible professionals and pro-social peers to whom he could turn when he needed support or guidance.
28. An earlier transfer to open conditions would enable F to progress his education and achieve more qualifications which would contribute to reducing his risk for the future. He would be able to test out the improvements he has made, demonstrate he can continue to apply and engage well when there are more opportunities for making his own decisions and provide a better opportunity to develop his relationship with his son.
29. Remaining in closed conditions would restrict his opportunities to achieve his academic potential. Achieving the highest possible level of education is likely to maximise his job prospects and his sense of himself as a positive contributor to society. Having been incarcerated from a young age, F will inevitably be somewhat institutionalised. Having the opportunity to serve some of his sentence in open conditions will enable him to experience and respond to everyday life challenges. Remaining in closed conditions means he will not have that opportunity prior to his release. He appears to meet the criteria for someone who has made exceptional progress in custody, has achieved the highest level of recognition for behaviour in each of the custodial establishments in which he has been placed, has completed all the required courses and received extremely positive reports. He has completed of all his treatment targets and achieved a level of education giving him the potential to start a university degree course. He has made as much progress in closed conditions as it is possible to do. Remaining there would halt his progress and restrict his opportunities to progress and achieve. If his tariff remained at the current level he will not have the opportunity to apply for a move to open conditions until his pre-tariff parole review, likely to be the end of summer 2016. Even then, he may not be transferred to open conditions, given guidance, in prison service instruction 40/2011, that "two years is considered to be the maximum time a prisoner should spend in open conditions". In Dr Marriott's opinion, F fulfils the criteria for having made exceptional progress in custody and she suggests that consideration be given to his suitability for a reduction in tariff to enable an earlier transfer to open conditions.
30. At the time these various reports were being prepared, F was awaiting trial in respect of an alleged assault on a prison officer which had arisen when he was attacked and, it would appear, accidentally struck a prison officer who was intervening. Those criminal proceedings have now been dropped and, accordingly, do not provide any negative factor to affect my conclusion. On the contrary, it appears that his maintaining progress, whilst transferred to a different institution whilst awaiting trial, has demonstrated his resilience and ability to cope with what could have been a significant setback without losing his momentum of progress.

Conclusions

31. I acknowledge the opinion expressed by the family of the victim. Understandably, they are of the view that a sentence, once imposed and deservedly so, should be served in full. The exercise in which I am engaged does not call into question the appropriateness of the sentence which was imposed. Lady Hale, in Smith, dealt with this issue in the following terms at paragraph 25

"...an important aim, some would think the most important aim, of any sentence imposed should be to promote the process of maturation, the development of a sense of responsibility and the growth of a healthy adult personality and identity. That is no doubt why the Children and Young Person's Act 1933, in section 44(1) required, and still requires, every court dealing with any juvenile offender to have regard to his or her welfare. It is important to the welfare of any young person that his need to develop into fully functioning law abiding and responsible members of society is properly met but that is also important for the community as a whole, for the community will pay the price either of indefinite detention or further offending, if it is not done."

32. In my judgment, the progress which F has made has, over a period of time, been exceptional and has been maintained despite setbacks which might have resulted in relapses. The views which I have received from those who have known him within the system: the Probation Officer, the Supervising Officer, those conducting the Resolve course, the Clinical Psychologist are all to one effect. He has made exceptional progress, which was by no means expected to that degree, from when he committed the offence and was sentenced for it. He has now reached the point where, whilst he remains in closed conditions, there is nothing more that he can do to make progress towards his aim of being a responsible citizen, a good father to his son and a fully contributing member of society He now needs to be confronted with the additional challenges which being in open conditions would provide, in particular, his ability to maintain that progress in the light of a new range of experiences of the outside world from which he has been removed for a number of years.
33. The tariff of 9 years less 202 days is such that there would now be a significant period during which his progress would not be able to be advanced by being moved to open conditions and, to that extent, continuation in closed conditions runs the risk of losing progress or, indeed, suffering a deterioration.
34. It is suggested, sensibly, by the Clinical Psychologist and by the solicitor acting for F that a reduction in his tariff of a period of one year would enable those planning his sentence to move at an appropriate pace towards placing him in open conditions, so as to give him the best opportunity of ensuring that the progress which he has made is maintained and built on so that, when he is eventually released, he is in the best position to pursue a useful, law abiding and responsible life.
35. Accordingly, I am satisfied that at least one of the conditions for a reduction in tariff of 12 months is made out and, accordingly, I reduce the tariff from one of 9 years less 202 days to one of 8 years less 202 days.