England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		8 June 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. The current "Criteria for reduction of Tariff in respect of HMP detainees", provides guidance upon the matters which may be considered of assistance when considering whether an offender has made exceptional progress in prison, namely,

1. An exemplary work and disciplinary record in prison;

2. Genuine remorse and accepted an appropriate level of responsibility for the part played in the offence;

3. The ability to build and maintain successful relationships with fellow prisoners and prison staff; and

4. Successful engagement in work (including offending behaviour/offence-related courses) with a resulting reduction in areas of risk.

4. Moreover, the guidance makes clear that all of these matters should ideally have been sustained over a lengthy period, and that to reach the threshold of exceptional progress there would also need to be some extra element to show that the offender had assumed responsibility and shown himself to be trustworthy, which may well be demonstrated by the offender having done good works for the benefit of others over a sustained period of time.
5. 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.
6. In reviewing the current tariff in the present case it is to be appreciated that I am limited to a consideration of the progress and development of the offender whilst he has been in custody. Nothing I say reduces the seriousness of this offence of Murder, or diminish the consequences of it for the victim's family and friends. Without doubt this was a dreadful crime, and the consequences of it terrible. However, in relation to the first of the criteria, what I have to do is to consider whether, during his period in custody, the offender has demonstrated exceptional and unforeseen progress, resulting in a significant alteration in his maturity and outlook since the commission of the offence and consequently whether, compared with the date of sentence, there has been a significant reduction in the level of risk posed to public safety such as to warrant a reduction in tariff.
7. Any reduction of course would not mean that the offender will necessarily be released any sooner that he would otherwise have been. Whether or not there is a reduction in tariff, the offender will not be released unless and until the Parole Board assesses him to be safe for release. However, a reduction in the tariff would mean that the Parole Board could consider whether he is safe for release earlier than it would otherwise be able to do so.

Background of the Offence

8. On 27^th November 2009 F, having been convicted by a jury of the offence of Murder, together with two counts of wounding with intent, was sentenced to be detained at Her Majesty's Pleasure, with a minimum term of 14 years less 223 days spent on remand, subsequently reduced on appeal to 12 years less 223 days spent on remand.
9. The first offence of wounding with intent occurred on 13^th February 2009, when F's father M, took his son to the Captain Cook public house in Barking, at a time when each of them was in possession of a knife. The licensee made them welcome, and they were allowed to remain after closing time. However, when the licensee asked M not to open the door of the public house, M was abusive towards her, and shortly thereafter, when the licensee's adult son entered the public house, M started to threaten him and offered to fight him outside. At some point the licensee's son picked up a pool cue, and F stabbed him in the neck and back.
10. The second offence of wounding with intent and the murder occurred on 14^th April 2009, when M took his son to another public house in Barking, called the Victoria, at a time when each of them was again in possession of a knife. Although the licensee made them welcome, M started to stare at the deceased, who was a customer, and at some point the deceased threw a punch at M. Thereafter M produced his knife, and the deceased fell to the floor having been stabbed 4 times in the chest. Although it seems that the witness evidence was unclear as to who delivered the fatal blows, the prosecution's case, and a matter which the trial judge, the Common Serjeant, found to have occurred, was that it was F who inflicted the blows to the deceased. Another customer also received stab wounds to his head.
11. At the time of these offences F was 14 years of age, and had minor convictions for dishonesty in connection with motor vehicles. The pre-sentence report revealed that between his birth and the age of 7, F had lived with his mother, and, that up to the age of 2, he had only had intermittent contact with his father, who was violent towards his mother. Thereafter, F had no contact with his father until the age of about 7, by which time there were issues of neglect by his mother, as a result of which the local authority had placed F in care. It was at that point that F's father reintroduced himself into F's life, and M took over his son's care. By this time F had a poor attendance record at school and was showing signs of aggressive behaviour. He had been diagnosed as suffering from Attention Deficit Hyperactive Disorder, ADHD, and Oppositional Defiance Disorder, ODD, and was prescribed Ritalin. His secondary education was characterised by numerous exclusions, and he received a Statement of Special Educational Needs. The author of the pre-sentence report assessed F as posing a high risk of harm to the public.
12. In sentencing F and his father, the Common Serjeant said to M that "When trouble inevitably erupts, you react with uncontrolled fury knowing that your son would follow your example…………although no one saw the blow land, the clear inference is that it was (F) who joined you, and killed (the deceased). You, though, bear much of the responsibility and must bear most of the blame." In relation to F, the Common Serjeant said, "…you show little remorse for your actions. You have minimised your role and you attempt to justify both you and your father's reactions….the aggravating feature is the carrying of knives into public places. There is, in your case, some mitigation in the sense of your age and to some extent being put in a situation where your loyalty was such that you felt (you) had to join in."
13. In the Court of Appeal, where the constitution included Lord Judge CJ, David Clarke J. stated that, "We remind ourselves of the very young age of the appellant, couple with the factor, which seems to be unique among the cases that we have examined, that at the time of both incidents (F) was in the immediate company of his father, going along with and copying his father's behaviour…………The age factor and the father factor should have counterbalanced those aggravating features so as to return the minimum period to the statutory starting point of twelve years."

Custodial History

14. Whilst in custody, F has been located in five secure establishments: Oakhill STC; HMYOI Warren Hill; HMYOI Ashfield; HMP Doncaster and; HMP Moorlands. During this period he has had 5 adjudications against him: an assault, on 31^st December 2010; fighting, on 19^th October 2011; using threatening behaviour on two occasions on 3^rd October 2012, and; having unauthorised items, on 8^th January 2013.
15. He has also completed the following courses: the Juvenile Enhanced Thinking Skills (JETS) in 2011; the Knife Crime Prevention Programme, in 2012; Resolve, a moderate intensity cognitive-behavioural intervention course which aims to reduce violence in medium to high risk adult male offenders, in 2013; the Victim Awareness Course and the Thinking Skills Programme (TSP) in 2014; the Alcohol Advocacy Programme, and; Listener Training in 2015.
16. Although detailed results of F's progress on the JETS course do not appear to be available, the results of his progress on the Resolve course in 2013 are available. He attended all 21 group work sessions, and 4 one-to one key work sessions, where he participated equally well, and his engagement was considered to be consistent throughout the programme. It was noted that, "In session he willingly volunteered to take part in role plays and demonstrated a number of excellent skills which included good assertive communication, active listening skills and often demonstrated these skills adding at time a dry, appropriate sense of humour." Moreover, he always completed his out of session work to a high standard. He acknowledged that when he entered prison, at the age of 14, he had no insight, and that although he considered that he now had good insight, there was always room for improvement. It was noted that from an early stage of the programme F was very reflective about information being shared within the group, and often explored the impact and consequences of actions that are taken. In this regard when, on occasions, he generated negative suggestions, he often stated that he would have to challenge these thoughts by thinking of the consequences if he acted on them, and replace the thought with an alternative strategy.
17. It would appear that a risk assessment was carried out by a forensic psychologist in training, Alison Jones, on 29^th August 2012, using the Structured Assessment of Violence Risk in Youth (SAVRY). She concluded that F posed a high risk of violent reoffending and causing serious harm in the future, particularly if F felt threatened personally, or if influenced by his father or similarly minded individuals, or he felt that someone close to him was in danger. Although, because of his young age at that time the assessment may alter relatively swiftly, she recommended that F underwent a further psychological assessment at the end of the following year, this does not appear to have taken place.
18. In his Sentence Planning and Review Meeting Notes, following an interview with F on 16^th April 2015, it was considered that F still posed a high risk to the public in the community. Albeit protective factors were considered to be present, namely that having completed various courses and shown a willingness to engage in focused work, his attitude and behaviour at HMP Moorland had been to a high standard and he is currently on the enhanced regime. It was considered that F should undergo psychological intervention, in order to highlight any further work which may assist in further reducing his risk of serious harm. However, although F was referred for psychological assessment, this was not undertaken because, "due to funding he was deemed not to be a priority."
19. It was noted that, as F has no more intervention courses to complete at HMP Moorlands, the short term objectives set for him were to obtain education qualifications which would assist him in obtaining employment on release, and to complete any further offence focused work deemed appropriate by his offender supervisor. His transfer to another establishment was also recommended, in order to see whether there was any further suitable work that may be able to be carried out at another establishment to further reduce his risk.
20. More recently an OASys risk assessment has been carried out upon F, and the results are contained in a document dated 15^th October 2015. It was noted that F appeared to show a positive attitude towards community and society, and that his behaviour on the unit is of a high standard. Moreover, he had made creditable progress during offence related work. However, it was noted that this work has comprised medium intensity interventions, and, due to the seriousness of his offending, it was considered that higher intensity intervention will be necessary before a reduction in risk from the present high risk, can be considered.
21. It is of significance that when discussing the offences, for the purposes of the OASys assessment, although F acknowledged the use of a knife in relation to both incidents, he appeared to suggest that these were not weapons brought to the scene by him, but were ones which he picked up during the course of the incidents.
22. There are two Tariff Assessment Reports, from his offender manager, Edwin Oguledo, dated 15^th October 2015, and from his offender supervisor, Liz Kiddle. Although the former of these appears to be based upon a relatively limited degree of contact between the author and F, the latter is based upon more extensive recent contact. Mr Oguledo recognised that there had been significant changes in the right direction with regards to his overall attitude towards his index offence; in that he now appeared to be taking some responsibility, albeit this was still to a limited degree. Overall, he considered that whilst F had shown some progress in custody, he did not consider that this was exceptional.
23. Ms Kiddle considered that during the time which she had spent with F, he had demonstrated an appropriate level of maturity. She provided a recent example of an improvement in his attitude, namely the positive reports which he received from staff when his work was altered against his wishes, from cleaning to painting. She also acknowledged the relatively small number of adjudications on his record, and, despite an example of immaturity when F was beat-boxing in one of the TSP sessions, he displayed a consistent ability to understand and assimilate his course work. She noted the result of the recent OASys assessment, and the funding difficulties in relation to any psychological assessment. She considered that F appeared to present genuine feelings of regret in relation to the offences, and the fulfilment which he receives as a result of his work as a listener. Her overall assessment was that, although she considered that F had shown an encouraging and creditable level of motivation and progress, in view of the significant amount of outstanding offence related work, his progress in custody could not be considered to be exceptional.

Further material

24. It would appear that since F volunteered to participate in a group session held at HMP Moorland in 2014 by the Howard League for Penal Reform, its former youth participation officer, Jessica Southgate, has taken an active interest in F's progress in custody. This not only resulted in F becoming one of the U R Boss project's young advisors, a project designed to encourage young people who have been affected by the criminal justice system to tell their story, but has resulted in the league commissioning a forensic psychological report, from Dr Louise Bowers, dated 31^st December 2015.
25. It is clear that Dr Bowers has very extensive experience in the assessment and treatment of adolescent and young adult offenders, who have committed their offences as children, and in preparation for her report, she has not only had regard to the documents relating to F's minimum term review, but has also seen him in interview. In the light of this material she has carried out a risk assessment upon F. Due to the combination of his age at the date of the assessment, namely 20, and his age at the time of the offences, namely 14, although she considered that the appropriate tool for assessing risk was HCR-20 (V3), she has modified this by omitting some of the adult risk factors which would not apply due to F's incarceration, whilst adding some of those from the SAVRY. She has also applied the Structured Assessment of Protective Factors for Violence risk (SAPROF).
26. One of the most significant matters which Dr Bowers was able to achieve with F, was to get him to provide the fullest account of his offending to date. This is probably best appreciated from the signed written account which he subsequently provided dated 1^st January 2016. In relation to the first of the two incidents he now acknowledges, for the first time, that the knife which he used upon the victim was one with which he had equipped himself prior to going to the public house with his father. As he states, "I didn't tell my dad but I copied him and took a knife from the kitchen and put it in my trousers." Thereafter he admits to using this knife to stab the victim, and concludes his account by saying that, "I wish I had never taken it with me. Something even worse could have happened. It must have been very scary for the victim and I am sorry that I hurt him so badly. I am also sorry that I did not admit everything fully earlier." In relation to the second of the two incidents, F admits that he returned home to collect the weaponry which was subsequently used by himself and his father during the course of the unfolding incident at the Victoria public house. Moreover, that he used one of those knives to inflict the fatal blows to the deceased, and the other injuries to the second victim. He concludes that, "…I should have just taken my dad home with me when I went and not let him go back into the pub. And even if he wouldn't come back with me, I shouldn't have returned to the pub and I shouldn't have taken any weapons with me. I know that now how easy it is for things to get carried away and so I would never carry a knife again."
27. In the course of the interview with F, Dr Bowers noted that F now recognised that he learnt some unhelpful attitudes from his father, for example, "you have to look after yourself and your family as non-one (sic) else will do it", and "if someone hits you, you hit them back." Moreover, that in the custodial setting where there is a significant problem with gangs, he stays away from these people, and is very careful about who he associates with. In this context Dr Bowers states that his good behaviour in HMP Moorlands is of particular relevance, as F doesn't reside in a protected environment, due to the mixing of both young and adult offenders, serving both determinate and indeterminate sentences, where violence and anti-social behaviour is not uncommon. In so far as F's attitude towards the harm he caused both to the deceased and his victims, and their respective families and friends, he expressed guilt, shame and deep remorse.
28. In interview, Dr Bowers noted that F was extremely polite, made good eye contact and was able to answer all of the questions, even those of a personal nature. She states that F came across as mature, intelligent, verbally able and friendly. He didn't show any signs of anxiety, depression, mood disorders, ADHD or ODD. He appeared to be open, honest and reflective. He didn't attempt to portray himself in a positive light, and made disclosures about the offences which portrayed himself in a very poor light. She noted that he was particularly ashamed about not being totally honest previously about his role in the offences, due to misplaced loyalty to his father, but now realises that he owes it to the victims and their families to be frank about it. Dr Bowers said that F was extremely modest about the progress and achievements he has made in custody. He was embarrassed when she mentioned the poetry which he has been writing, which has resulted in him not only gaining a Koestler award, but the friendship of the children's author, Anthony Horowitz, who states in his letter, dated 3^rd November 2015, that "(F) is unfailing polite and considerate and had never tried to take advantage of my interest in him." Indeed in his interview with Dr Bowers, F didn't mention his contact with Mr Horowitz. Overall Dr Bowers concluded that F "…was easy to engage, and appeared at ease during the interview without being over-confident or arrogant in any way."
29. Dr Bowers said that this attitude which she experienced in interview, was consistent with his attitude in prison, in that he has not been noted to be anti-social, demanding or manipulative, rather he is compliant, co-operative and self-sufficient.
30. In relation to the risk assessment Dr Bowers explained that although F possessed a number of historical risk factors for violence, the only ones which were critical were the traumatic experiences as a child, his complex relationship with his family in particular his father, and the pro-violent attitudes which he held. However, she noted that F was clinically stable, and had good insight into these influences on his life. As Dr Bowers noted, "…whereas before he defended his father's actions he now states that his father should not have put him in that position and he should have insisted they leave the public house at the first sign of tension and trouble." Moreover, as a result of the successful completion of the offence based courses which he has undertaken and his general level of maturity, Dr Bowers considered that he now possesses a large number of protective factors, in particular empathy for others, effective coping skills and self-control. None of which he possessed at the time of his offending, and which have resulted in him not only avoiding confrontation, but have positively influenced his capacity and motivation to assist others as noted in paragraph 4.23 of Dr Bowers' report.
31. Dr Bowers' opinion, based upon this analysis of his risk and protective factors, was that F's current risk of violence is low, and that he does not require any further core risk reduction treatment. In particular she considered the question of whether F met the criteria for requiring SCP intervention. In this regard she noted that for an individual to be suitable for SCP, it is necessary that he possess a 60% chance of re-offending violently within two years, whereas the latest OASys assessment considered F's risk as medium, which correlates with a 30% risk. In these circumstances, she is of the opinion that F does not meet the criteria, nor does he meet the criteria for a clinical override, in that based upon Dr Bowers' assessment of risk under HCR-20 (V3), F's risk is considered to be low. Therefore Dr Bowers concludes that F is neither suitable for, nor requires SCP.
32. Overall Dr Bowers is of the opinion that bearing in mind his age and characteristics when F entered custody, he has made both exceptional and unforeseen progress. Moreover, that if his tariff remains as originally imposed on appeal, his further progress may stagnate, and there is a risk that he may become demotivated and possibly institutionalised.
33. In addition to Dr Bowers' report, I have also been provided with, and taken into account, correspondence both from F's family, and in particular from a significant number of prison officers, who express particularly positive views about the maturity of F's character. These include Officer Coucom who, in August 2015, stated, "(F) in the last year or so has shown a drastic change in his behaviour for the better he has gained his enhanced status through his positive behaviour completing courses and gaining qualifications. I have been (F's) personal officer for approximately 10 months. In this time he has shown what a polite and mature young man he is even if things aren't going his way." Moreover, Officer Naylor, having known F for over 2 years, concludes that, "Most of the other young offenders should look to (F) on how to behave and conduct themselves."

Conclusion

34. When F entered custody at the age of 14 there is no doubt that he was a dangerous individual. The dreadful nature of his offences attest to that, as do the significant number of risk factors which contributed to it, including his troubled childhood, the negative effect of his father's own views and lifestyle, and his consequential attitude to perceived threats, namely the use of significant violence, including the use of knives.
35. It is from that low base, that his progress in custody falls to be judged. In many ways it is fortunate for F that his offending took place whilst he was still so relatively young, prior to the ongoing effect of those risk factors becoming so entrenched within his character, that any amount of cognitive behavioural work may have been insufficient to turn the tide. However, as his own sister observes, from the age of 14 onwards F has been without the negative influence of his father, and instead has been subjected to a series of courses which have sought to replace those with ones designed to allow F to make a positive contribution within society. It is not every offender who chooses to benefit from such assistance. However, from the material which I have read, F is not one of those, rather he is fortunate to have sufficient intelligence and insight to appreciate the benefits, both to himself and society, of undertaking this work. It is clear that he has done so with enthusiasm and application, and is now making a thoroughly positive contribution to HMP Moorland.
36. Undoubtedly there is one aspect of rehabilitation which has remained troublingly immune to such work, and that is his honesty and openness with the circumstances of his offending. Indeed I perceive from the results of the OASys assessment, that it was this matter which was one of the main stumbling blocks to the maintenance of his high risk categorisation. It is of course possible that, had some further psychological intervention taken place after 2013, this may have been resolved earlier. However, the intervention of Dr Bowers appears to have unlocked the situation, and not only does it appear that F has now provided a frank account of events, but his expressions of remorse have a significantly enhanced value.
37. Ultimately of course it will be a matter for those responsible for F's custody to determine what, if any, further offence based cognitive behavioural work he requires. However, given the undoubted expertise and experience of Dr Bowers in this field, for the purposes of my task, I have no sufficient reason to reject her opinion as to F's current risk.
38. True it is that F has had a number of adjudications against him. However, they are comparatively few in number, and most significantly there has been a 4 year gap since the last adjudication for violence, since which time F has undertaken the Respect course, from which he appears to have benefitted. Moreover, the attitude which F appears on the evidence before me to have consistently displayed over the last few years towards both staff and fellow offenders alike, appears to be entirely positive. In particular, he has shown, through his work with the U R Boss project, and as a listener, that he both understands the value to others of making a positive contribution to society, and is willing to do so.
39. I have given careful consideration to the relevant criteria in this case, and weighed the evidence available concerning F's progress in custody. In my judgment, given the very low base from which F commenced his journey through the custodial system, not only do I consider that his progress has been exceptional, but that it was not something that could have been foreseen. On the contrary, given the circumstances of the offences one would not have been optimistic of the outcome. However, no doubt as a result of the combination of his age, underlying temperament and the determined work undertaken by the prison authorities, a significant amount of success in his rehabilitation has been achieved.
40. Clearly more rehabilitative work will be required to be undertaken both by F and the prison authorities. Moreover his eventual release, if at all, will be entirely a matter for the Parole Board. However, in recognition of his exceptional and unforeseen progress to date, I consider that his tariff should be reduced by one year, to 11 years less 223 days spent on remand.