R Duncan Mcluckie (Claimant) The Secretary of State of Justice (Defendant) R Donald Mackay (Claimant) The Secretary of State of Justice (Defendant)
| Jurisdiction | England & Wales |
| Judge | Bean J |
| Judgment Date | 30 July 2010 |
| Neutral Citation | [2010] EWHC 2013 (Admin) |
| Docket Number | Case No: CO/1558/2010 & CO/1396/2010,CO/1558/2010 & CO/1396/2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 30 July 2010 |
[2010] EWHC 2013 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before: Mr. Justice Bean
Case No: CO/1558/2010 & CO/1396/2010
Phillippa Kaufmann (instructed by Bhatt Murphy, London N1) for the Claimant McLuckie
Hugh Southey QC (instructed by Michael Purdon, Newcastle) for the Claimant Mackay
Matthew Slater (instructed by the Treasury Solicitor) for the Defendant
Hearing date: 20 July 2010
Mr Justice Bean :
The Claimants are two prisoners serving sentences of life imprisonment whose tariff period has expired. Each of them is at present a Category A prisoner. Each challenges the refusal of the Category A review team ("CART"), on behalf of the Defendant Secretary of State, not to convene an oral hearing before deciding whether to downgrade his security categorisation from A to B. Mr. McLuckie also challenges the substantive decision of the CART in his case to maintain his Category A status.
Duncan McLuckie: the facts
Mr. McLuckie was born on 27 March 195On 25 January 1989 he picked up a prostitute in his car in central Manchester. He drove her to a side street for the agreed purpose of having sexual intercourse for payment. He then deliberately and in cold blood stabbed her with a skewer causing multiple stab wounds and the throttled her using both hands. Death was due to strangulation although one of the stab wounds would have been fatal if death from strangulation had not intervened. An attaché case containing a hammer, a piece of wood, metal skewers and two ace of spades playing cards were found in his car following the offence.
Mr. McLuckie was convicted of murder by a jury and sentenced to life imprisonment with a tariff of 15 years. In accordance with the practice obtaining in 1989 the trial judge (Judge Prestt QC, the Recorder of Manchester) was asked to report to the Home Secretary on the case and in particular the degree of dangerousness presented by the prisoner, the likelihood of future re-offending and the factors to be taken into account when release was considered. He wrote:-
"(1) I have no reasonable doubt that the Defendant on the night of the murder left home with intention of picking up a prostitute—any prostitute—and killing her."
(2) Either immediately before, during or after the killing, the Defendant had sexual intercourse with the deceased The Defendant denied intercourse but a used condom containing semen was admitted as having been worn by him.
(3) Within a few minutes after the murder the Defendant was questioned by Vice Squad officers who were unaware of the presence of the deceased body in the car. The Defendant appeared calm and collected. He told deliberate and coherent lies in order to dissuade the police from looking into the car; he acted out a charade which involved his getting back into the car in a position which must have involved bodily contact with the dead body. At no time did the Defendant lose his composure or manifest any sign of distress.
(4) Throughout the trial the Defendant appeared wholly unconcerned by the death of the deceased; he showed no emotion whilst looking at photographs of the corpse.
(5) The only apparent motive the Defendant could have had for wanting to kill a prostitute was that, according to the Defendant, he had twice been the victim of robbery to which a prostitute was party. I quite frankly doubt if this is the explanation for what the Defendant did. One must suspect that the Defendant killed because he got perverted satisfaction from killing.
(6) I can only regard this Defendant as dangerous in the extreme and fully capable of killing again."
The Claimant had no previous criminal convictions but did have four disciplinary findings against him in the course of a 17 year military career. These were for negligent discharge of a weapon, fighting, using threatening language to a superior and ill-treatment of a soldier. The dates ranged from 1972 to 1988.
During his first 10 years in custody the Claimant had a total of 12 adjudications against him, but since 1999 his prison record has been good. He has completed the Enhanced Thinking Skills programme and the "CALM" anger management programme. However, since the expiry of his tariff period in 2004 he has remained in custody with security classification A. It is common ground that so long as a prisoner remains in Category A there is no real prospect of the Parole Board recommending his release.
In 2007 the Claimant's solicitors asked Dr Stephanie Hill, a consultant in forensic and clinical psychology, to interview Mr McLuckie and report. In a detailed report dated 13 th September 2007 Dr. Hill records that she had interviewed the Claimant over the course of the previous day and had had access to his parole dossier. Several pages of the report are devoted to Mr. McLuckie's account of his background history and of the index offence. In particular, he maintained that the victim had attempted to steal money from his jacket pocket; that he grabbed her arm and a struggle ensued in the course of which he stabbed and strangled her.
Dr. Hill wrote, in paragraphs 8.2 and 9.3–9.6:-
"Risk assessment tools for predicting sexual re-convictions are invalid in Mr. McLuckie's case as he has no convictions for sexual offences and there is no clear evidence that his offence was sexually motivated or involved a sexual component. In my view it is virtually impossible to state with confidence whether Mr. McLuckie's offence was indeed sexually motivated. Clearly this should have been a consideration given the paraphernalia found in his car at that time, but, although a sexual homicide is one explanation, it is not the only explanation…
It is my opinion that there is insufficient evidence to suggest a sexual motive for the homicide and, although it was clearly correct to raise this, the lack of evidence, Mr McLuckie's continued denials and the recent psychology assessment report that he is inappropriate for their SOTP [Sex Offender Treatment Programme] would all tend towards indicating this should not be a primary concern. Indeed, it is my opinion that the passage of time and the lack of official primary documents would suggest an impossibility in proving such a link and continual pressure upon Mr. McLuckie may result in a situation where an offender learns to say what others want him to say merely in order to progress. If there is genuine concern that this remains an active risk, then the most reliable future assessments would be through physiological means, i.e. the polygraph and/or a PPG. In my opinion there are no current grounds or concern regarding future sexual offending due to the lack of supporting evidence for this, i.e. sexual convictions, other inappropriate sexual behaviour or expression of deviant attitudes."
In 2009 the Prison Service commissioned a report on Mr. McLuckie from Margaret Curry, a treatment manager for the SOTP employed by HMP Frankland since 2004 and described above her signature as a "forensic psychologist in training". She was supervised for the purposes of the report by a senior colleague holding the rank of principal psychologist. She noted that the Claimant had a past record of planning violence to seek revenge. She found that he lacked insight into his own violence and failed to see any link with the other times that violence had occurred in his life which he attributes to the culture of the army or to his having been "defending himself". She wrote that, "he adopts a grievance style of thinking and seeks revenge". She suggested that a personality disorder may be present and that a referral to DPSPD (Dangerous People with Severe Personality Disorder) services may be warranted. She wrote that he had no real regret or empathy and appeared to rationalise the use of violence. She recommended a PCL-R (Psychopathy Check List —Revised) assessment. She also found that there was a serious unstable relationship pattern. She suggested that his attitudes towards women and his sexual interests may be worthy of further exploration to establish if there are any sexual interests linked to violence.
This report, dated 9 th July 2009 led the Claimant's solicitors to instruct Dr. Hill to assess and report further on Mr. McLuckie. They requested that consideration of his case by the Local Advisory Panel of CART should be deferred until that report was available. The LAP, however, met on 27 August and recommended that the Clamant should remain a Category A prisoner. It stated that he was not suitable for the SOTP due to his denial of any sexual element to his offence. They suggested a PCL-R assessment for a possible DSPD referral.
Dr Hill's second report was dated 13 September 2009. She again records that she had had access to the parole dossier. She carried out a PCL-R assessment herself and gave Mr. McLuckie a very low (i.e. favourable) overall score. She expressed the opinion that he would not meet the criteria for DSPD services. His daily management and behaviour was in her view insufficiently problematic to suggest that he represents a high and immediate danger to others, including the public in the event of escape. He did not demonstrate psychopathic personality disorder. She disagreed that there was sufficient evidence to warrant Ms. Curry's statement of a serious unstable relationship pattern. On the subject of a sexual motivation for the murder she was highly critical of...
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