R (Chester) v Secretary of State for Justice and Another
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE UNDERHILL,MR JUSTICE BURTON |
| Judgment Date | 28 October 2009 |
| Neutral Citation | [2009] EWHC 2923 (Admin),[2008] EWHC 1318 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 28 October 2009 |
| Docket Number | CO/1051/07,CO/83/2009 |
[2008] EWHC 1318 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Underhill
CO/1051/07
(1) The Parole Board
(2) Secretary Of State For Justice
Ms Flo Krause appeared on behalf of the Claimant
Mr Rory Dunlop (instructed by the Parole Board) appeared on behalf of the First Defendant
Ms Suzanne Lambert (instructed by the Treasury Solicitor) appeared on behalf of the Second Defendant
This is a renewed application for permission to apply for judicial review. The claimant has been represented by Ms Flo Krause; the first defendant, the Parole Board, by Mr Rory Dunlop; and the second defendant, the Secretary of State for Justice, by Ms Susan Lambert. I am grateful to all of them for their helpful and cogent submissions.
The claimant is a serving prisoner who, on 1st March 1978, when he was aged 23 or 24, was convicted of the rape and murder of his seven year old niece. He was sentenced to life imprisonment. The judge initially recommended a minimum period to be served of 12 years but the Home Secretary eventually set a period of 20 years. The claimant is aggrieved at the way in which the Home Secretary departed so substantially from the recommendation of the trial judge, which would of course not have been possible under the modern practice, but it is the basis on which all concerned acted at the time; and his tariff accordingly expired in 1997. The claimant has not been released and remains a category B prisoner in, at present, HMP Frankland.
These proceedings were commenced on 6th February 2007, seeking judicial review of a decision of the Parole Board dated 7th December 2006, not to direct the claimant's release or recommend his transfer to open conditions. At that stage the claimant was representing himself, and extensive grounds were drafted by him. On 22nd May 2007, Mr James Goudie QC, sitting as a Deputy High Court Judge, refused permission.
The claimant renewed his application. At an oral hearing on 21st September 2007, Walker J adjourned that renewal application in order to allow the claimant to amend his grounds. Solicitors and counsel were then instructed and amended grounds were prepared accordingly. In the light of the expanded scope of those grounds, permission was sought and granted to add the Secretary of State for Justice as the second defendant. I mean no disrespect to Mr Krause, whose submissions before me I found most helpful, when I say that, as she was indeed good enough to acknowledge, the amended grounds were somewhat diffuse and their precise relationship with the grounds originally pleaded by the claimant somewhat confusing. However, on 4th March 2008, Ms Krause prepared a short document headed “Clarification of the claimant's grounds”, which formed the basis of her oral submissions before me.
There has been a dispute in correspondence between the parties' solicitors as to whether the amended grounds, as so clarified, enable the claimant to challenge his continuing categorisation in Category B. It was, however, agreed at the commencement of the hearing before me that his grounds should be treated as including a challenge to a decision of his lifer manager, Mr Ayers, recorded in a report dated 6th March 2008 following a meeting of the Sentencing Planning Review Board the previous month, not to move him to Category C.
Ms Krause has made it clear that she is not pursuing two other peripheral complaints initially made by the claimant, one relating to the removal of his typewriter, which has since been returned, and the other to the alleged opening of his privileged correspondence. As far as the latter point is concerned, she made it clear that she had no instructions to withdraw that part of the case, but she did not wish to make any submissions in relation to it, not least because she acknowledged that it was for practical purposes almost impossible to establish whether any opening of the claimant's privilege correspondence that may have occurred was intentional or by oversight. All I need say is that I have no doubt that the authorities, having been alerted to the allegations made, will take care to see that proper procedures continue to be followed in this regard.
I am accordingly concerned with two decisions quite widely spaced in time —first, the decision of the Parole Board in December 2006 and, secondly, the decision of Mr Ayers in March 2008 —but both share a common background. Decisions both as to release and as to categorisation depend on an assessment of the risk posed by the prisoner. It is apparent that the principal, the claimant would say the only, reason why the Board in the one case and Mr Ayers in the other have decided that the claimant has not demonstrated a sufficient reduction in the risk which he poses to justify his release or recategorisation, is that he has not undertaken the extended Sex Offender Training Programme. The relevant history in this regard can be summarised as follows.
Following the expiry of the claimant's tariff, Parole Board reviews were held in January 1998 and July 2000. For reasons into which I need not go, but which seem perfectly cogent and have not been criticised before me, he was not considered ready for release or for transfer to open conditions. He had in 1999 undertaken the Sex Offender Treatment Programme, which is a distinct and considerably less demanding programme than the Extended Sex Offender Training Programme to which I have already referred, at Wakefield Prison. He says that he found it hard going and traumatic but it was recorded that he had made considerable progress as a result of undertaking the programme. It was nevertheless considered necessary that he should proceed to the extended programme.
For that purpose, he was transferred to Brixton in June 2001, but within a short period of commencing the programme he withdrew from it. He has given somewhat different accounts at different times of his reasons for doing so, but I am not sure that they are in truth irreconcilable. He says that he found the experience of being required to go over the circumstances of his offence in detail extremely painful and distressing, and he believed that it was of no real value in circumstances where he had fully admitted his guilt shortly after his conviction, over 20 years previously, and had been over the circumstances in detail as part of the Sex Offender Training Programme at Wakefield. He was offered no psychological or other professional support with the difficulties which he experienced in the initial stages of the programme at Brixton. He had in recent years developed a strong Christian faith. He prayed and came to the conclusion that further participation in the course would be unhelpful and wrong because it focused on the past when his faith told him that all that mattered was that he should focus on the future. (The latter point has been expressed in some reports somewhat baldly as his saying that he had been “told by God” not to continue with the programme. That is no doubt one way of putting it and may indeed be a way in which the claimant has himself put it on occasions, but it may be misleading if it suggests that the claimant was simply asserting some crude externalised or indeed delusionary instruction not to proceed.)
The claimant was in due course returned to Wakefield, where there was a further hearing before the Board in December 2004. He was later transferred to Frankland. Up to and including the hearing before the Board in December 2006, he maintained the position that he was not prepared in any circumstances to participate in the Extended Sex Offender Training Programme.
The Board's decision letter dated 7th December 2006 (the hearing itself had been on 5th December), reads, so far as material, as follows:
“4. Your progress in prison has not been smooth and your behaviour has at times been poor, but you did come to admit your offence and have expressed a great faith in God. There is a long history of conflict with the prison authorities and a reported obsession with the length of your tariff, but in 1998 you completed the ETS course and in 1999 the Core SOTP. However, in 2001 you declined to continue on the extended SOTP, for which you had been recommended to reduce your risk, because God had instructed you to deselect yourself and you have not since undertaken any offence-focused or risk reduction work.
5. You have now been in HMP Frankland for 16 months and current reports from the prison indicate that your behaviour has been good, although you have one adjudication in April 2006 for disobeying a lawful order. There is doubt as to whether this was later quashed. All the reports, including those of both the seconded and external probation officers, state that the risks of further violent and sexual offending have not been reduced, nor are likely to be, unless you complete the extended SOTP and other offence-focused work and there are no recommendations for your release or transfer to open conditions.
6. Your own written representations clearly demonstrate a strong belief in God and you have the support of your church members. You have also been supported by the mental health team, as you have presented with symptoms of chronic depression and placed yourself in segregation, and your present attitudes or complaints —confrontation, intimidation and self harm —are such that the external probation officer considers that if they persist there will be concerns over your mental health.
7. At the hearing,...
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