Andrew Longmire v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nicol |
| Judgment Date | 15 June 2011 |
| Neutral Citation | [2011] EWHC 1488 (Admin) |
| Docket Number | CO/244/2011,Case No: CO/244/2011 |
| Date | 15 June 2011 |
| Court | Queen's Bench Division (Administrative Court) |
[2011] EWHC 1488 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon. Mr Justice Nicol
Case No: CO/244/2011
Quincy Whitaker (instructed by Scott-Moncrieff, Harbour and Sinclair) for the Claimant
Matthew Slater (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 7 th April 2011
Introduction
On 22 nd October 1988 the Claimant was sentenced to life imprisonment following his pleas of guilty to 11 offences of rape, 3 of attempted rape, buggery, indecent assault and 2 offences of using firearms to resist arrest. His tariff was fixed at 20 years. Throughout his sentence he has been a Category A prisoner. From time to time the Claimant's categorization is reviewed. The decision is the responsibility of the Secretary of State for Justice. In practice it is taken by the Director of High Security. In advance of the review in 2010 the Claimant asked to be re-categorised as a Category B prisoner and requested an oral hearing instead of the usual paper review. On 21 st September 2010 the Director decided (a) to refuse the request for an oral hearing and (b) to maintain the Claimant's Category A status. By these proceedings the Claimant challenges first the refusal to agree to an oral hearing. He submits that fairness obliged the Director to accede to his request for such a hearing. Edwards-Stuart J. granted him permission to bring this part of his claim. Secondly, he submits that the substantive decision that he should continue as a Category A prisoner was irrational. The judge did not consider that this part of the claim was arguable, but the Claimant has renewed his application for permission in this regard.
When I heard the matter on 7 th April 2011, it was known that the Court of Appeal (Sir Anthony May, PQBD, Sullivan and Gross LJJ) had recently heard a case involving similar issues: Donald Mackay v Secretary of State for Justice. The parties agreed that it would be sensible for me to defer my decision until judgment in that case had been handed down. It was on 12 th May 2011 ( [2011] EWCA Civ 522) and I have received written submissions thereafter from both parties.
The facts
Between 1981 and 1988 the Claimant went on two separate campaigns of raping women in five different counties. The first was between 1981 and 1984 and the second between August 1987 and his arrest in January 1988. Most of the victims were attacked in their own homes, sometimes in the presence of their children. Two of the attacks took place in the street. He threatened some of his victims with a knife. As I have said, two of his offences were using a firearm to resist arrest. He was charged and sentenced as I have already explained.
In May 2002 he commenced treatment at the Fens Dangerous and Severe Personality Disorder Unit ('DSPD'). His tariff expired in January 2008. In July 2008 he had an oral hearing before the Parole Board. In its decision dated 4 th August 2008 the Board considered that the Claimant had made considerable progress and drugs and alcohol were no longer risk factors as they had been. He had reduced his risk in relation to sex offending but he still minimised the full extent of his tendencies that led to the many rapes he had committed or attempted. He also needed to undertake significant work on violence. Overall the Board considered that the risk remained too high for release or a move to open conditions to be considered. In a passage on which the Claimant relies, it added,
"You should work towards your next review being in Category C conditions and to attempting to complete all remaining work that is required in Category B conditions in the areas of sexual and violent offending and the triggers for your offending before that next review."
On 29 th July 2009 the Director decided that the Claimant should remain a Category A prisoner. The Claimant challenged this decision but permission was in due course refused on 17 th June 2010.
On 25 th April 2010 the Parole Board again considered the Claimant's case. It decided not to direct release or a move to open conditions. While it acknowledged that he had made considerable progress while at the DSPD Unit, this needed further testing as he moved through lesser controlled custodial environments.
In the meantime the Claimant was charged with a further offence of rape which had been committed on 7 th September 1981. He pleaded guilty on 13 th May 2010 and, on 10 th June 2010, he received a further life sentence with a two year tariff to run concurrently to his existing sentence.
On 9 th July 2010, the Local Advisory Panel ('LAP') considered the Claimant's case. The Panel's decision is dated 19 th July 2010 and was endorsed by the Governor of HMP Whitemoor, where the Claimant was then held. It recommended that the Claimant should be downgraded to Category B. This was the fourth occasion on which the LAP had recommended that the Claimant be downgraded. As well as the Governor, the LAP included the Clinical Director of the DSPD Unit (Dr Jacqui Saradjian), the Lead Psychologist, a Forensic Psychologist, the Acting Deputy head of Security and a number of Offender Supervisors.
This meeting of the LAP was specifically convened to review the Claimant's position in view of his plea of guilty to the additional charge of rape. The Panel said of this matter,
"He pleaded guilty to prevent any further distress to the victim and her family. He has accepted full responsibility for the offence. He presented as concerned about what distress this would raise for other victims of his crimes. He managed his own emotions extremely well during this period and did not resort to any dysfunctional strategies or behaviours. We felt, although the court conviction and sentence was a significant outcome, this did not increase risks and actually helped demonstrate progress in understanding and dealing with risks and behaviours associated with his offending."
It went on to recall the good progress he had made during his time in the DSPD. He had made substantial and significant changes in all aspects of his personality which were evidenced by consistently improved behaviour and attitudinal change (especially relating to authority) that had been built on and sustained for some considerable time. He had responded to the setback of the previous year of being recommended locally for progress but not being downgraded. Overall the LAP was satisfied that he had demonstrated maturity and improved capacity to control his behaviour even when going through a crisis and it was satisfied that he had built a foundation that would enable him to be safely downgraded to Category B and a disposal that should look to provide opportunities for him to continue therapy within the Category B estate.
Additionally, Dr Saradjian wrote to say that the Claimant had made "dramatic changes" during his time at the Fens Unit. Since the conclusion of his therapy in March 2010 he had maintained and built on his progress despite having no more than minimal support from clinical and operational staff. On behalf of the unit she endorsed the LAP's recommendation for a downgrade.
The Director reviewed the Claimant's case on 23 rd August 2010 and issued his decision on 21 st September 2010. He took account of the outcome of the previous Parole Board review and the reasons for the LAP recommending downgrading. His decision letter continued,
"The Director was however very concerned about Mr Longmire's recent further conviction for rape. He considered this was an important factor to be taken into account in assessing the level of Mr Longmire's progress. He noted Mr Longmire had committed this offence many years ago, and that it was one amongst a large number of other similar offences he had committed. But the Director noted Mr Longmire had failed to acknowledge this offence despite all the therapy completed and had only admitted responsibility when brought to trial through newly available evidence.
The Director considered that Mr Longmire's failure to acknowledge his full offending throughout this long period in custody and work in therapy must cast doubt over the extent of his progress. He considered it may invalidate much of his recorded progress on such issues as his sexual offending and victim empathy.
The Director noted Mr Longmire's previous reports had recommended further intervention work on his sexual interests and attitudes towards his victims and that this had been one of the reasons for maintaining his category A status at his last review. He noted Mr Longmire had since worked on some related issues through the Healthy Sexual Relationships Group, but understood Mr Longmire was still recommended to take part in the extended SOTP [Sex Offenders Treatment Programme] to further address these issues.
The Director considered Mr Longmire should now take part in this work, both to address these outstanding issues and to determine how far his failure to acknowledge and discuss all his offending has undermined previous intervention work. He also understood further DSPD therapy may be needed following completion of the extended SOTP.
The Director also took into account the persistent concerns relating to Mr Longmire's presentation and behaviour towards others. He considered that, although some improvements had been shown, these were not as lasting or convincing as he would expect from a prisoner who had completed extensive therapy and was being considered for progression.
The Director also noted such concerns had been raised once more in the reporting period, although again the reports suggested Mr Longmire had remained committed to therapy and in other respects had been compliant. He still considered that Mr Longmire's...
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