Alan Michael Houchin v Lincolnshire Probation Trust
| Jurisdiction | England & Wales |
| Judge | The Hon. Mr Justice Supperstone,Mr Justice Supperstone |
| Judgment Date | 09 April 2013 |
| Neutral Citation | [2013] EWHC 794 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ12X02283 |
| Date | 09 April 2013 |
[2013] EWHC 794 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Supperstone
Case No: HQ12X02283
Heather Williams QC and Quincy Whitaker (instructed by Messrs Atter Mackenzie) for the Claimant
Iain Daniels (instructed by DLA Piper LLP) for the Defendant
Hearing dates: 26-28 February 2013
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
This is an application by Lincolnshire Probation Trust, the Defendant, to strike out the Claimant's Particulars of Claim pursuant to CPR 3.4(2)(a) on the basis they disclose no reasonable grounds for bringing the action, alternatively for summary judgment pursuant to CPR 24(2)(a) and 24(2)(b) on the basis there is no real prospect of success and there is no other compelling reason for the claim to continue.
Mr Houchin, the Claimant, is a serving recalled life sentence prisoner. The Defendant is responsible for the provision of probation services within the Lincolnshire area. These proceedings concern a claim for misfeasance in public office against the Defendant on the basis it is vicariously liable for the actions of its employee Mr Michael Gilbert, who was at the material time seconded to HMP North Sea Camp (a Category D, open conditions prison) as Lifer Manager where the Claimant was a Category D prisoner.
Paragraph 4 of the Particulars of Claim state:
"This claim for misfeasance in public office relates to the abrupt and unlawful transfer of the Claimant from open conditions at HMP North Sea Camp to HMP Lincoln on 8 May 2008, effected without due process and in circumstances that breached assurances given to the Parole Board. The Claimant's case is that the transfer was effected by Michael Gilbert, the then acting lifer manager at HMP North Sea Camp, who created a false and deliberately distorted case in support of his removal from open conditions without regard to the Claimant's actual risk to the public and for his own improper reasons as set out below."
Paragraph 57 of the Particulars of Claim state:
"The conduct of Mr Gilbert was motivated by improper purposes namely in order to divert criticism of the mishandling of the Claimant's case from those responsible at the prison and/or motivated by his view that the Parole Board were about to order the Claimant's release at the eleventh review or in any event confirm his placing in open conditions, such that he felt that he should take matters into his own hands to pre-empt this."
Factual background
The Claimant was born on 27 May 1938 and is now 74 years of age. On 22 August 1965 he murdered a 16 year old girl. On 16 November 1965 he was convicted of murder and sentenced to life imprisonment. The murder contained a significant sexual element to it. On 15 April 1976 he was released on life license and in 1977 he met and began to live with a woman who became his second wife. On 7 March 1979 his second wife obtained an ex parte injunction under the Domestic Violence and Matrimonial Proceedings Act 1976 (2/5/73-107) against him. They were subsequently divorced in 1980. On 12 March 1979 the Claimant committed an offence of rape. On 29 March 1979 he was remanded in custody. On 30 March his case was referred to the Parole Board by the Home Secretary to consider whether his licence should be revoked and it was on 3 April 1979. On 27 July 1979 he was convicted of rape and he received a nine year determinate sentence which rose to ten years three months, taking into account the activation of certain suspended sentences for unrelated offences. The Claimant always denied the allegation of rape, contending that the sexual intercourse which occurred was consensual. Between 1979 and 1997 he was unable to undertake any targeted offender behaviour work due to his denial of the 1979 rape.
However between 1998 and 2004 the Claimant showed "a willingness to explore, challenge and modify behaviours associated with areas of risk" (see report of Ms Capelin, forensic psychologist at HMP Albany dated 17 December 2004). On 24 April 2006 the Claimant was transferred to HMP North Sea Camp, into what are termed "open" conditions following a recommendation by the Parole Board on 11 March 2005. However on 13 October 2006, shortly after his arrival at North Sea Camp the Claimant's risk level was increased from medium to high (see para 43 below).
On 1 January 2008 Mr Gilbert took up the position of Life Manager at HMP North Sea Camp. On 3 January he had a brief introductory meeting with the Claimant. On 28 February a Sentence Planning Meeting was held which both Mr Gilbert and the Claimant attended. The following day Mr Gilbert started to prepare a LISP4 report, an "Open Conditions Failure Report". On 17 March 2008 Ms Plank became the Claimant's Offender Manager. She completed an OASys assessment on 27 March 2008 which continued to assess the Claimant's risk of harm to the public as "high". Subsequently she completed a further OASys on 2 April 2008 which raised the Claimant's risk of harm to the public to "very high". Mr Gilbert completed the LISP4 report on 1 May 2008. The report refers to a meeting of the Inter-department Risk Management Team ("IRMT") on 1 May 2008 when it was disclosed that the outside probation service had put the Claimant's level of risk of harm at very high. That was the second OASys of Ms Plank. Mr Gilbert wrote (1/2/116):
"This clearly indicates an imminence to risk of serious harm should he be released into the community. This renders Mr Houchin's continued presence in North Sea Camp untenable."
The report concluded (1/2/118):
"Mr Houchin is a life sentence prisoner who remains in denial. The denial is clearly an issue however the prison system has allowed him an opportunity to gain insight into his offending by in effect working around his denial and allowing him to focus on his previous behaviour. This has not had the desired effect and he has now to accept a return to closed conditions. Clearly the value of any work in relation to the 1964 offence [for murder] is limited so in my submission Mr Houchin should be expected to work on the issues related to the 1979 offence [for rape], perhaps overcoming his internal inhibitions in relation to this and working from a position of denial to an open and frank acceptance of the facts of the case and the impact upon his victim who after all was a teenage stranger to him who went to his house in connection with employment, and not for sex.
Unless this work is achieved … Mr Houchin will unfortunately render himself unsuitable to be considered for release."
On 8 May 2008, without any formal advance notification and without any opportunity being given to the Claimant to make representations, he was transferred to HMP Lincoln (a Category B prison). This transfer was made despite a specific assurance that was given by the Lifer Governor of HMP North Sea Camp, made in the presence of Mr Gilbert, to the Parole Board at the Claimant's deferred eleventh parole review on 14 April 2008 that the Claimant would remain at HMP North Sea Camp pending an adjournment of the review that was then fixed for 30 July 2008.
On 3 June 2008 the Claimant issued judicial review proceedings in respect of his transfer on 8 May 2008. The matter was listed for a "rolled up" hearing before Collins J on 2 July 2008, when it was adjourned generally upon the Secretary of State for Justice agreeing that he would refer two questions to the Parole Board for its advice:
i) Whether the Claimant should have been relocated to closed conditions, and
ii) Whether he should be recommended for immediate transfer back to open conditions.
Following a hearing over four days between 5 November 2008 and 26 March 2009 on the reference by the Secretary of State and for the purposes of the eleventh statutory review, the Parole Board issued its decision on 27 July 2009.
The panel identified four issues that it had to determine (para 45):
"(1) Issue 1: was there any evidence of heightened risk whilst Mr Houchin was in open conditions?
(2) Issue 2: should Mr Houchin have been relocated from category D open conditions in HMP North Sea Camp and transferred to category B closed conditions in HMP Lincoln on 8 May 2008?
(3) Issue 3: what is Mr Houchin's current risk of harm and how should that risk be addressed?
(4) Issue 4: can Mr Houchin now be recommended for a transfer back to open conditions and what risk would he pose in open conditions?"
The panel's conclusion on Issue 1 is set out at paragraph 86 of the decision:
"The reality is that, on any objective view, no evidence has emerged during Mr Houchin's time in open conditions, a period of twenty-five months, that his risk has been raised above, or was higher than, the OASys assessment of his risk that he was a medium harm risk to the public, that had been made in 2005 and which had formed the basis of the decision to transfer him to open conditions."
The panel's reasons that led it to this conclusion include the following:
"(3) Neither HMP North Sea Camp nor Ms Plank provided a satisfactory explanation or any reasonable basis for deciding to raise Mr Houchin's risk of harm from medium to high on 13 October 2006 and from high to very high on 2 April 2008.
(4) Mr Houchin, both in his conduct at HMP North Sea Camp and on escorted town visits, did nothing that would lead to a reasonable conclusion that his risk levels were raised above the levels that they had been assessed as having been lowered to at the time of his arrival at HMP North Sea Camp.
(5) The...
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