R (Ferguson) v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Rafferty |
| Judgment Date | 11 January 2011 |
| Neutral Citation | [2011] EWHC 5 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 11 January 2011 |
| Docket Number | CO/8670/2009,Case No: CO/8670/2009 |
[2011] EWHC 5 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before: MRS JUSTICE RAFFERTY DBE
Case No: CO/8670/2009
Hugh Southey QC (instructed by Scott-Moncrieff, Harbour & Sinclair) for the Claimant
Jonathan Auburn (instructed by Treasury Solicitors) for the Defendant
Hearing date: 18 th October 2010
Mrs Justice Rafferty :
On 9 November 2009 Sir Michael Harrison granted permission for Judicial Review of the decision of the Secretary of State in 2009 regarding the Claimant's categorisation as a life prisoner. The Claimant contends that the decision is unlawful, failing to comply with basic principles of procedural fairness. It may also be necessary to decide whether a subsequent 2010 categorisation decision makes this claim academic. The Claimant submits that the decisions in 2009 and 2010 should be quashed. Alternatively, if the 2009 decision were flawed but this is no longer material, he seeks a declaration confirming that the 2009 decision was unlawful since he must be entitled to an order designed to prevent further unlawful reviews.
Chronology
Background
| 2 November 2000 | Convicted of Murder |
| 29 April 2009 | First litigated categorisation decision |
| 16 July 2009 | Respondent's solicitors write a letter before claim |
| 20 July 2009 | Secretary of State responds |
| 21 July 2009 | Claimant's solicitors write to the Secretary of State stating that the judge's sentencing remarks (sic) had not been disclosed |
| 9 November 2009 | Permission granted to apply for judicial review |
| 19 February 2010 | Local Area Panel reviews the Claimant's case |
| 7 April 2010 | Second litigated categorisation decision |
The Claimant since conviction for murder on 2 nd November 2000 has been detained as a category 'A' prisoner, defined as one "whose escape would be highly dangerous to the public, or the police or the security of the State, and for whom the aim must be to make escape impossible" (Prison Service Instruction 3/2010), his categorisation reviewed in 2009.
The usual procedure for review of the conditions in which category 'A' prisoners are detained involves reports used in the reviews being supplied to the prisoner for comment before a final decision is taken. The reports make no recommendation in connection with categorisation, and are submitted to a 'local advisory panel' ('LAP') at the prison where their subject is detained. The LAP then makes a recommendation to the Category 'A' Review Team ('CART') based in London on whether a categorisation should be downgraded. If the LAP's recommendation is that the prisoner should remain category 'A' and if the CART agrees, the final decision is taken by the CART. In all other cases the relevant decision is taken by H.M. Prison Service's director of high security prisons.
The index offence. The Claimant denied and continues to deny guilt. SK, 33 at her death, a divorced mother of two lived with her children in Gillingham where on 24 November 1999 the Claimant handcuffed her behind her back, stabbed to death and apparently raped her vaginally and anally. He had previously had a friendly, but not physical, relationship with her. The Crown's case was that the offence had a sexual motivation.
The circumstances of the offence are set out in documents disclosed to the Claimant when he appeared as a defendant in his trial, and which were before the Defendant when he made his 2009 decision. Also disclosed in advance of the 2009 review, within a dossier of reports, was the report of Jo Pallas a psychologist. Not disclosed was the report by the trial judge, misleadingly throughout the paperwork in this Judicial Review termed "sentencing remarks" whereas it should properly be termed "the post-conviction report for the Home Secretary".
Also available to the Claimant was a report of Offending History ("OH") which reads in part:
"The victim was found in her home, lying face down on her bed with her legs spread apart. She had been attacked from the front and suffered multiple stab wounds to her chest. Her throat had been slashed and she had bruising to her face. Her hands were handcuffed behind her back and her blouse had been ripped open revealing her breasts."
The psychologist's contribution to the OH (disclosed before the 2009 decision) reads in part:
"Details regarding the lead up to the offence are not clear. It is documented that the victim had been restrained by the use of handcuffs and her body was naked from the waist down, and her upper clothing having been torn by force. She was vaginally raped and injuries indicated anal penetration. She was found lying face down on the bed with her legs apart. It is documented in his Dispersal Induction Assessment that it is possible that necrophilia took place … The victim had been attacked from the front and suffered multiple stab wounds to her chest focussed around her heart. On at least two of the wounds the knife had been lunged in and pulled out at a short distance and lunged in again. The victim's throat had been slashed and she had bruising on her face consistent with a slap or punch to the face.
The evidence reported in Mr Ferguson's Dispersal Induction Assessment, which includes his case summary, indicates that he planned the offence. It is documented that Mr Ferguson sent an email message shortly before the offence, suggesting that he was planning to rape a woman, 'by 4pm I'll be a true man'… 'It should be a TRUE MAN'S right to rape any woman he wants … I've been sizing up a female acquaintance to state my lust for real'."
It further records –
"… a large selection of pornography was found in his home, he composed and replied to rape stories on the internet … sexual preference for teenage girls. Mr Ferguson has had a relationship with a girl under the age of 16 years … preferring sex to include violence or force … there is evidence that on the internet he downloaded, composed and replied to rape stores and fantasies, each one including the use of a knife, using the knife to increase the pain of the victim whilst he was having intercourse. Some of the scenarios that he put on the internet were similar to events of the index offence.
Rape supportive beliefs. During his DIA interview he also stated that he wanted to create a website named 'UK Rape Club'. There is also evidence that he had a fixation with stranger rape scenarios.
Use of violence – Mr Ferguson has been convicted of murder. His offending involved an extreme amount of violence …"
The Crown at trial and the Defendant in this Judicial Review relied and rely on an amount of planning in relation to the murder. As the OH sets out:
"Mr Ferguson filled in a shoppers' survey giving his victim's name as his partners and putting his address, thus receiving mail for her and giving him an excuse/opportunity to go to her home to deliver the mail for her. This survey was completed several months prior to the offence and police suggest that this was part of the planning."
Also prepared for the 2009 review and disclosed in advance was:
"… Mr Ferguson does not accept responsibility for his offending and therefore it has been difficult to identify specific triggers. However, the following have been identified as possibly benefiting from further exploration: viewing sadistic pornography, and fantasies of rape or sex to include force/violence …….In relation to evidence of continued risk, Mr Ferguson does not accept responsibility for the offences and is therefore not engaged in any offence-focused work. Consequently, all areas of risk remain outstanding………….Mr Ferguson resembles the group of people labelled as "medium" risk of combined risk of sexual and violent recidivism. In the historical sample, the combined sexual and violent reconviction rate for this group was 23% over a 5 year period, 30% over a 10 year period and 34% over a 15 year period. As not all re-offences result in conviction, actual rates of re-offending would be likely to be higher than this, but it is not possible to say precisely how much higher………….December 2005 [whilst in prison] Mr Ferguson ordered a magazine and a DVD which was sexually sadistic in nature and contained images of both men and women. Mr Ferguson engaged in the extensive use of sadistic pornography, primarily on the internet, during the lead up to his offence. This is of concern and indicates offence paralleling behaviour."
The Claimant's solicitors made representations on the reports disclosed and supplied an independent report by Louise Coates, a consultant forensic psychologist who had worked with serious offenders for over 13 years. She was a member of the Parole Board, and qualified to administer risk assessment tests including the Hare Psychopathy Checklist, the HCR-20 and the Risk of Sexual Violence Protocol.
She concluded that:
"…….Mr Ferguson presents a low risk of violently offending and moderate risk of sexually offending as assessed by the HCR-20 and SVR-20. He presents with few personality traits associated with psychopathy, which in turn indicates that Mr Ferguson does not present a high risk of generally or violently re-offending, along with none of the personality traits associated in the literature with sadistic sexual murders. …..Mr Ferguson does not present the level of risk warranted by Category A status, he is highly unlikely to attempt to escape and in the improbable event that he was [sic]unlawfully at large it is doubtful that he would engage in unlawful...
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